BT et C

Thursday, March 24, 2005

My Birthday Present

Alright, Luke and I are resolved to update our stuff more frequently (yes, Luke, I resolved for you. Get to it.)

For my birthday, I got some wonderful news: Bill Gates is joining me in calling for some improvements to the US patent system. Awesome! He also joins others who -- perish the thought -- might be more public-spirited than the Vole?

How about a tit-for-tat?
MS: executives "recommended that the U.S. Congress end patent filing fees for small companies, nonprofit groups, universities and individual inventors" and "pushed Congress to end the diversion of patent fees from the USPTO to the U.S. government general budget, saying that the office needs more funding"
NA: "The patent office needs additional resources to hire and train more examiners, and to implement information technology that would boost its processing capabilities. "

I like it.

MS: "It is too easy for a litigant to manipulate the U.S. system and look to a patent lawsuit as the ultimate lottery ticket, hoping to confuse jurors with technical jargon that will yield the payment of a lifetime"
NA: urges "the USPTO to strenuously observe the statutory requirement known as the "nonobviousness standard," which says that in order to qualify for a patent, an invention cannot be obvious to a person of ordinary skill in a given area."

All good points, so far as they go. But the critical difference between NA and MS recommendations for reform is in the latter's silence on this issue:
NA: "Access to patented technologies should be available for research purposes and in the development of cumulative technologies, where one advance builds upon previous advances."
From the article: "In 2002, the federal circuit court ruled that scientific research is part of the "business" of universities and is not protected from liability. Prior to that decision, many in the research community presumed the existence of a research exemption and acted accordingly"

That bit encapsulates the IP crisis for me. All its implications might take some unraveling, so bear with me.

Software is not a product, nor is it a service. It is a body of knowledge -- specifically, it is Very Abstract mathematics. Feed these bytes into a computer, and these other bytes will come out. Every time. Source code and GUIs and all the other stuff is simply a layer on top of that. Double-click this, or type that, and the interpreter/desktop manager will feed bytes into the computer. And these other bytes will come out.

Fedora Core 3 is only the most recent stopping-point in a long line of incremental advances over MULTICS. A microprocessor is an invention; a 64-bit microprocessor is an advance.

The NA does not find that the patent system requires a major overhaul, but I think the research exemption implies exactly that, if the fundamentals of software are understood.

Software ~= research != business

(That's the approximately-equal sign there)

There's a great deal more to say on this, but I'll wait for comments.

2 Comments:

  • my comments, I assume. =)

    I know very very little about the whole legalities of the software/IP patent things going on. guys like me spend $299 on a commercial license so they can avoid the subject completely.

    so instead of commenting on that, I'll comment on what software is, and let that be applied to patents however it will be.

    software cannot be reduced to just a product, or a service, or knowledge, or math. the same way that medicine cannot be reduced to just chemistry & biology. medicine as a whole is a human-usable application of science. a "scientific art" as Mark and I have settled on. there is an un-deniable non-scientific, or creative, element involved when applying the facts and concepts of those scientific truths to real humans in the real world - where there are an infinite number of external forces that the lab science does not and cannot account for.

    to describe software in this way:

    the underlying science of mathematics is present in software, but does not adequately encompass software as a whole. as such, "software" cannot be reduced to being just a body of knowledge of Very Abstract Math. it's a collection and an application of mathematical sciences applied to the real world - business world, research world, entertainment world, _____ world, etc. each of which contain countless factors that impact the manifestation of the software that wasn't relevant in the mathematical research.

    Software ~= math + research + business + humans + everything else

    this pseudo-philosophical stuff is exactly why FUD exists toward open-source licenses. people either can't, or don't want to, think of software in these terms or on this level when they need to Get Shit Done.

    but how the patent laws need to change to reflect this reality is an argument that more philosophical types are tasked with working out.

    I don't envy them.

    By Blogger luke, at 9:09 AM  

  • I rather like the medicine-software comparison, but I think you take it Way Too Far.

    Like programming, medicine is a complex discipline, the purpose of which is to make a system (the person, in one case, the machine, in the other) function smoothly.

    However, compared to a person, the computer system is devastatingly simple. It can only be "fed" two things, ones and zeros, and as long as there is an electric potential difference across the bus, no other environmental factors play.

    I certainly don't mean to suggest that programming is non-creative. But the artistry of software is in the source code, which exists for the sole purpose of making modification easier.

    This matters. Here's why: research has demonstrated that patenting inhibits innovation when progress consists of small incremental improvements to a science. Patents may be necessary, for example, to encourage the massive R&D spending for a pharmaceutical "breakthrough molecule". But this is a very different discipline than programming.

    And if there are people abusing a flawed system and thereby stifling innovation in software, your ability to Get Shit Done is impacted.

    For funzies I'll return to the analogy: suppose the Food and Drug Administration was all jacked up, and hundreds of useful medicines were prevented from reaching market because they couldn't get their act together. And a physician said "I don't have time to think about how the FDA works; I've got patients waiting'

    It is sensible and understandable but IMO kinda short-sighted.

    By Blogger Matt Crouch, at 10:03 AM  

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