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RE: [OT] Re: Geoworks and their patent

• From: Bill dehOra <Wdehora@c...>
• To: xml-dev <xml-dev@i...>
• Date: Tue, 25 Jan 2000 18:31:12 -0000

:  Contrary to popular belief, the framers of our patent system 
:  were well 
:  aware that machines embodied ideas, which is why they 
:  allowed only specific 
:  embodiments of the basic ideas to be patented and not the ideas or 
:  algorithms behind them. So yes, I would accept a one-click 
:  patent based on 
:  gears and Jacquard looms, if Amazon cared to try to patent 
:  that embodiment 
:  of the idea. Of course they'd have to mention Babbage's 
:  prior art. I might 
:  even accept a specific electronic implementation on a 
:  particular computing 
:  machine, but there is a level of abstraction beyond which 
:  you can't go 
:  without strangling the source of ideas.

You can't simply patent the embodiment. That way one could get around
mechanical patents by changing the materials involved. You have to patent at
a more abstract level. 

  
: It works only to discourage small 
:  innovators and protect the interests of large corporations, 
:  who can afford the cost of initiating a patent search and application as 
:  well as the lawsuits.

This comes down to prior art I think, and perhaps that's why it's called
prior art, not prior idea. The cost is a result of the legal and economic
systems that are in place, not the nature of patents per se. this problem
was around before software patents became an issue.


:  The fact that there are two systems of protecting 
:  innovation, patents and 
:  copyright, is the embodiment of the wisdom of the original 
:  framers of our 
:  "intellectual property" laws. If you wanted to protect a 
:  machine, you used 
:  patents and could protect and license the physical 
:  embodiment of the idea 
:  but not the idea itself. If you wanted to protect an idea, you used 
:  copyright to protect your specific expression of the idea 
:  but, again, couldn't protect the idea itself.
:  Ideas were always exempted from any sort of protection 
:  because the purpose of both laws was to encourage the free expression of
and 
:  interchange of ideas.

You see, this where we part company. I don't think for a second that
algorithms are ideas, at least not in the hand waving, cafe-metaphysics
sense of the word. Algorithms are logico-mathematical descriptions, whose
described behaviour can be operationally embodied in machines. That makes
them functionally distinct from ideas (or at least a discernible subset). In
this sense, you can patent the  *algorithm* fooSort, but not the *idea* of
sorting. The problem in the US seems to be lack of consensus on the legal
definition of an algorithm, or the refusal to distinguish between algorithms
and ideas.

  
:  Copyright is an appropriate mechanism for protecting 
:  computer programs, not 
:  patent rights. But nobody bothers nowadays, since patents 
:  are a bigger club 
:  to thrash your competitors with.

That's a societal problem. The US patent office is hardly responsible for
the level of litigation witnessed in the US.
 

:  Phrased more-or-less in  that way, I 
:  have no doubt that one could have a jolly good try at 
:  patenting doorbells 
:  if no one at the Patent Office happened to notice the joke. Which I 
:  sincerely doubt they would, given their history.

You could, if there was as little prior art around as there was for Amazon's
patent. 

You could possibly take the conception of a doorbell process and turn it
into a sufficiently novel way of automatically ordering goods in software
that it would be a distinct innovation out of doorbells and unlike the
algorithm of existing systems. 


-Bill

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