> > Hmm, guess I'll have to read more b/c I didn't think that was true. I thought
> > it was algorithms and certain processes that weren't patentable. But anyway...
> >
>
> Actually, Software patents are enabled under a 1975 ruling that permitted the patenting
> of a "Business Method" (something that was previously barred, and should still be barred,
> for much the same reasons software patents should be barred). Software Engineers,
> "Practitioners of the Art" in patent language, know that a software program is actually
> the concrete actualization of one or more mathematical algorithms, but the US Supreme Court
> was convinced that software is actually the implementation of a business plan. The result is
> that we have patents on two things that are of extremely limited value if kept completely
> secret (per trade-secret), and are generally of immense value when naturally shared with
> society (as Jeff explains quite well later in his post). Given the purpose of US patent
> and copyright law to encourage the migration of ideas from the closed realm of trade-secret
> to the open realm of public-domain, granting patent protection to ideas which have a
> natural in-built propensity for publication is innately contradictory to the clear purpose
> of the law, and should rightly be struck. Of course, the hard part is getting a case
> to the Supreme Court where this could be done and, more importantly, getting the justices
> to agree.
I am not a lawyer. This is not legal advice.
The language that supports patents is very problematic, but is not
typically challenged due to legacy and level of investment by various
political groups. The key language here is 'material process'. I
believe the first software patent was some kind of application that
allowed, in conjunction with a physical machine, for the superior
rendering of some kind of material( rubber I believe ). Sorry can't
find a reference right now. The relationship to a physical process
was a requisite for patent admission. Since then, patent lawyers have
managed to stretch this meaning to such a degree where its original
intent has been abandoned. You will notice that in most software and
internet patents very abstruse language is used that is designed, not
to explain the invention clearly, but to establish its grounds in this
historical legislation. Software patents were rarely used as a
business tactic until the late 90s ( around the time of Microsoft
Anti-trust Trial [1] ).
"Business Method Patents" typically refer, not to software
algorithms, but rather techniques for doing business. BMPs are an
entirely new form of IP, that arose at the same time as the
international outsourcing economy. They are a clear adulteration of
the original intent of the Patent system. IBM supplied much of the
thrust behind BMPs. They are, in my estimation, an indication of how
pliant our bureaucracies are to the pressure of capital interest.
In 2005, 417,508 US Patents were granted, 48% of which were granted
to non-Americans. From what I understand, the figure for 2006 is even
more alarming.
http://www.uspto.gov/go/taf/us_stat.htm
-jmz
[1] with regards to Microsoft evil empire, I am beginning to think
that the problem of MS will not be solved with open source, it will be
solved the way it has always been solved in the US( and the way it is
being addressed in the EU ), with an Anti-Trust case. Perhaps this
time they will find prosecutors who actually know how to use a
computer.
--
( 602 ) 490 8006
jjzeidner@gmail.com
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