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Comment by petegrif | Hacker News Reader

"One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general."

This is possibly the most important statement in the piece.

I would argue that patent term should be roughly proportional to the time it takes to build something useful with it. Now, I know this is a giant black hole defined by "useful" but consider this: it takes much less resources (time and money) to go from patent to product in software than in chemistry or airplane engine.

Having a software patent term of 5 years is enough to have a leading product in competition even with software giants like IBM(start-ups are a good evidence of that). While the normal 20 year term for non-software patent, which certainly requires more time and money to have an upper hand vs big companies in already similar markets, should be left as it is.

Perhaps there are other industries where, for the grater good of human kind, they can apply some limit function on patent term, say Pharmaceutics.

Yes. And it is wrong.

The economics of production of hardware/things is (still) fundamentally different from the production of digital copies. And that is why it makes good sense to be squarely against software patents and be indifferent about hardware patents.

Your comment has a lot more relevance to copyright law than patent law, in my opinion.

Yes, it is the most important statement, and I disagree with it.

Software expressions are a form of lambda calculus, i.e., mathematics, and ought to be outside the proper domain of patents, whereas the proper domain of patents is the material. 1+1 is always 2. One drop of water + another drop of water is sometimes one drop of water and sometimes two drops of water and sometimes something else. One ball-bearing + another ball bearing is usually two ball bearings, but one needs to be careful about their environment, or you end up with something that no longer constitutes two ball bearings - and that is the crux of the matter. If your patent is intrinsically implemented by 25 or more Schrödinger modelled actual entities (e.g., just about any molecule larger than H2O) you're now operating in the material world, the old rules apply, and good luck to you. The Platonic 0 and 1 and the finite (though arbitrarily large) operations on them should not be bound by those rules.

And yes, it is a religious belief - in mathematics.

"you're now operating in the material world, the old rules apply, and good luck to you"

That's where patents and most of us live. Seeing a patent as bad is not logical. Seeing the potential to improve on someone else's idea and acquire your very own patent is logical.

Software is represented and conceptualized as math. But when you put fingers to keyboard you set in motion a bunch of electrons and magnetic domains; you're assembling mechanical objects into a complex physical machine, a computing system that's in a new physical state it never existed in before. Nothing about the process couldn't be done instead with hydraulics or gears and levers instead of electrons and magnetic domains, except it would be a lot bigger, slower, harder to ensure a precise 1:1 relationship with our mathematical abstraction of it, and harder to ignore its physical nature.

Granted. But surely the prior art on bits being transmitted through a general purpose computing machine, whether mechanical, magnetic, mental, musical, or magical, is now unassailable. What is novel is not physical, what is physical is not novel.

So every software implementation of anything is not novel? Are you really sure about that?

I am wrapping up a tremendously complex and awesome patent application today that my client is essentially implementing in hardware, but there is absolutely software involved, and I also drafted the claims so that a bunch of stuff my client happens to be implementing in custom ASICs is also covered if the same magic were also done by a general purpose computer running the same functionality in software. It's not a distinction almost anyone will ever be able to tell the difference with (except the custom silicon is going to function faster than a software-on-general-purpose-computer could do). Are you sure that difference would automatically make it not novel and undeserving of a patent?

Sorry I didn't see this earlier.

I believe there is no meaningful distinction between an algorithm running on general purpose hardware and the same algorithm running on custom hardware. If you'd enforce your patent by claiming that someone else was barred from implementing an algorithm you own, I'd say that "what is novel is not physical". Algorithms are not within the purview of the patent office (or I should say, should not be).

If you'd enforce your patent by saying that someone else was barred from inventing your custom hardware to run this fast algorithm, I guess I'd want to know if the leap from the algorithm to the specific ASIC is "obvious to one skilled in the art".

That statement does not make sense even by pg's own logic. He says that patents play a small role in software compared to other industries. Yet opposing software patents means you must oppose all patents?

I think there is a decent case that software patents are uniquely broken, both practically and theoretically, and (net) harmful, while some others are (net) beneficial, such as pharmaceutical patents. So I think it's fine to be against software patents but not against other types.

"Only the Sith deal in absolutes"

His point with this statement wasn't an argument from outcomes, but an argument from principles.

His claim is that the distinction between algorithm and physical manifestation is false, therefore software patents are no different from hardware patents.

I dunno. "Hardware" patents allow for people to design something that would require millions of dollars of manufacturing equipment, and still get paid. I think the point of hardware patents is to allow the inventor to license that technology out to companies that have the capability to manufacture the hardware.

Software patents don't have anything like that. All it takes for someone to implement a piece of software is a cheap laptop and time. Everyone can write software (or rather, everyone has the financial capability to do so).

Time and talent are everything. Have you ever patented anything?

The problem with this statement is that he's looking at the end result, instead of the human activities that lead up to it. Patents exist to promote progress (according to the US Constitution). They motivate activities that would otherwise be neglected. The activities that produce software require less motivation than the activities that produce hardware. They may produce equivalent end products, but that's not what should determine patent protection.

"The activities that produce software require less motivation than the activities that produce hardware."

Produce software or produce a software product? There is a massive, massive difference.

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