[throwawaykf]

I'll let alone the fact that your definition of "software patents" is flawed. Let me address your other points.

> There are so many conclusive arguments against software patents that the result is overdetermined.

Or, also known as "being in an echo chamber".

> Black boxes are never patentable.

The concepts of a Person of Ordinary Skill and Doctrine of Equivalents is not "black boxes". Are you saying all the so-called "bad" patents you've seen were things you couldn't implement by reading them?

>1. Computer programmers are overwhelmingly against software patents.

Echo chamber. The vast majority of developers barely know what a patent is. Many others think they're a point of pride, and that's where all these software patents are coming from. The rest are just really vocal.

> For the first time in my life I see educated people advocating the abolition of the entire patent system, even at the cost of life saving drugs, just to get patents out of computer software

"Educated" does not mean "well-informed", and it does not mean they know anything about patents. Economists are still having trouble quantifying the benefits and harms of patents, let alone software patents, so I'm guessing your "educated people" are basing their opinions on personal biases rather than evidence.

> Programmers hate patents in their industry by something like ten or twenty to one.

Wow, this echo chamber seems to have reached resonance. Here's a statistic closer to the truth: 99% of people complaining about patents don't know jack about how patents work and simply regurgitate what they tech media tells them, and tech media is not only clueless, it's deliberately misleading.

> 2. Software patents are harmful to innovation. They created almost all the modern patent trolling crisis. They shutdown startups and innovative projects and block open source.

Studies [1, 2], albeit with only publicly available data, have found no empirical evidence of a "modern patent trolling crisis", and I have heard of more small companies being ripped off by big guys (see i4i) than being shut down by patent trolls. On the other hand, I can list some studies that find "software" patents are no worse than other types of patents [3, 4, 5], and can actually be pretty useful for startups. [6, 7].

> 3. Software is math and both math and mental processes are SCOTUS identified ineligible subject matter.

"Machines are made of metals which occur in nature, which are SCOTUS identified ineligible subject matter."

> 4. The quality of software patents we see is uniformly bad...

I'm genuinely curious: how do you judge the quality of a patent?

> 5. When we bought our computers, ever since the first general purpose computers in the 1940s, we have done so expecting to run programs on them. Using a machine for its expected and customary use is not subject to any patents beyond the patents on the machine itself.

"When we first mined metals, we have done so expecting to make things out of them. Using a metal for its expected and customary use is not subject to patents beyond the patents on the metal itself."

1. http://www.gao.gov/assets/660/657103.pdf

2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970083

4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=650921

5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999098

6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=510103

7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=989592

[Natsu]

> Or, also known as "being in an echo chamber".

There are plenty of those, including, say, IP Watchdog. Yes, some of us have been known to hang out in very pro-patent echo chambers as well.

> The concepts of a Person of Ordinary Skill and Doctrine of Equivalents is not "black boxes".

Complete non sequitur. A black box is a device where the function is known, but not its workings. If something is a black box, it's hard to see how it would satisfy the 'enablement' standard. Well, unless it's black box software, then it's just fine! Judges apparently think that you just tell the computer what to do and it requires no undue experimentation. So you just need someone to come up with the brilliant idea to patent software that simulates the human brain and achieves sentience (or at least passes the Turing test) and everything thereafter is just a matter of typing it in once this disclosed. Yes really, see [1].

> Studies [1, 2], albeit with only publicly available data, have found no empirical evidence of a "modern patent trolling crisis"

They apparently haven't read the newspaper, either, wherein we find that every major tech company is apparently a thief, in spite of the fact that nobody actually reads patents (we're all warned not to, treble damages and all that). Interestingly, widespread reinvention of a patent is not considered empirical proof of obviousness, rather it proves that the idea was really valuable and the patent holder deserves lots of money for discovering that, say, cell phone computers can do email just as well as other computers. Also, we'd best not look at the steadily increasing number of patent cases, nor all of the goings on in Marshall, TX.

> "Machines are made of metals which occur in nature, which are SCOTUS identified ineligible subject matter."

You're confusing "contains" with "is" here. I've also seen patent lawyers try to do a reductio ad absurdam saying that software is hardware (read some of the Patently O comments...). Apparently they don't realize that software is information and that numbers are no different than any other form of information. And, as with your broken logic, we can say that hardware contains information [software], but it's quite ridiculous to say that hardware is information.

> I'm genuinely curious: how do you judge the quality of a patent?

By how much of it is actually new. If someone comes up with a new computing device, some idiot will try to patent having it do email, web surfing and everything else we already know that computers can do.

> When we first mined metals, we have done so expecting to make things out of them. Using a metal for its expected and customary use is not subject to patents beyond the patents on the metal itself."

We can actually enumerate all of the programs that can go on a particular computer. It's the set of integers from zero to the largest number that would fit in memory (most of these are not useful, however). I don't believe you can do that with all things that could be made of metal, moreover the metal's properties are altered in certain combinations (e.g. amalgams) whereas the computer's properties are not altered by the information on it--the computer is still performing an instruction loop over the data it contains.

[1] This is a real howler for programmers, found quoted on Patently O: Fonar Corp. v. General Electric Co., 107 F.3d 1543, 1549, 41 USPQ2d 1801, 1805 (Fed. Cir. 1997) (“As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. * * * Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software.”).

[throwawaykf]

Glad to finally see someone who looks at the other side of things as well! I generally avoid IPWatchDog for the same reason reasons as Groklaw: too shrill, snarky and narrow-minded.

> Judges apparently think that you just tell the computer what to do and it requires no undue experimentation.

Yes, Fonar v GE is a ridiculous one when generalized, and I do wholeheartedly agree that the "enablement" requirement is very weak currently and a ton of patents don't meet it in my eyes. Take the PageRank patent, for one, often cited as an example of a good patent. It is very lacking in implementation details, so much so that a blogger set out to implement it and ended up with a bunch of posts complaining about all the undue experimentation he had to do.

But take the average case: how much undue experimentation is required for your average patent? How much undue fiddling would be required to implement, say, Twitter's pull-to-refresh, or the iPhone rubber banding patent, or the Google doodle patent, or the MS FAT patent? I think my point still stands: how many patents couldn't you implement just by reading them? (Also, keep in mind triviality of implementation is very different from non-obviousness.)

> They apparently haven't read the newspaper...

Like I said, tech media is not only clueless, it's deliberately misleading. Newspapers are merely anecdata, and worse, potentially biased anecdata [1]. Why rely on that when we have studies that tell you the data they looked at so you can find the flaws in them rather than accepting unsubstantiated, rageview-bait at face value?

> Also, we'd best not look at the steadily increasing number of patent cases, nor all of the goings on in Marshall, TX.

Actually, studies [2, 3, 4] did look at it and found no real increase. [2, 3] found that the AIA joinder rules, where previously a single case could have multiple defendants now must be individual cases, caused an inflation in lawsuits with no statistically significant increase in the number of litigants involved. [4] actually finds EDT is better than others with respect to plaintiff win-rates.

> Interestingly, widespread reinvention of a patent is not considered empirical proof of obviousness

A few points here, since this turns up often:

1. Reinvention many years later is not proof of obviousness. It simply means an idea has permeated widely enough to become obvious to others. A big reason the way US (and other) patent offices do examination, where they must support a rejection with enough prior art references, is to avoid hindsight bias.

2. There is very little "widespread" re-invention going on; what is happening is one product/project/company re-invents something(s) and that gets widely used. (Think Android, or the iOS SDK.)

3. Simultaneous independent invention could be considered proof of obviousness... Or it could be proof that two or more really smart people were working on the same problem at the same time, which has happened in "patent races". But at least at the PTO it happened so rarely that they changed to first-to-file.

> You're confusing "contains" with "is" here.

No, you're confusing both, the nature of software and the inventions being claimed. The software is what makes a machine do useful things, and those useful things are the inventions that are patentable.

> I've also seen patent lawyers try to do a reductio ad absurdam saying that software is hardware (read some of the Patently O comments…).

What they mean is, it's "equivalent", which is perfectly accurate. Also, please explain how software can exist without hardware. What's in your mind is steps to implement or recreate software, but it cannot exist without hardware outside your mind. Just like any other invention.

> Apparently they don't realize that software is information ...

How is "Software is information" different from "machines are metal"? Doesn't seem to be my logic that's broken.

> By how much of it is actually new.

Sure, but how do you determine that a patent covers something actually new?

> We can actually enumerate all of the programs that can go on a particular computer. It's the set of integers from zero to the largest number that would fit in memory (most of these are not useful, however).

I don't see the point, but I can trivially debunk this:

1) The order in which you "interpret" or execute those bytes gives you a completely different program. So if you can fit in 1GB in a high-end smartphone, the number of all possible programs approaches factorial(1e9). That's a number about 8 billion digits long, if Google serves correctly.

2) Now consider that you fill that memory up with programs that generate other programs, or variations of themselves. Something like, say, Conway's game of life. I cannot begin to calculate how many different programs that could generate.

These are absolutely humongous numbers, no different from the number of ways physical objects can be arranged. Now consider that only an infinitesimally small part of them are actually useful. I find that an argument to the patentability of software than against it.

> ... whereas the computer's properties are not altered by the information on it--the computer is still performing an instruction loop over the data it contains.

The computer's properties are not altered?!? It goes from being a heap of semiconductors to actually doing something! How is that different from a machine going from a heap of components to an useful implement?

And each program makes it do something different so each program changes the purposes of the computer, and so becomes a different tool! A simple thought exercise: you're on Youtube. Someone asks you what you're doing. Is your answer:

a) "I'm using the computer"

b) "I'm watching videos"

Interesting isn't it? Now repeat the exercise with games, programming, document editing. And then explain to me how running different software on the same machine does not change its function.

1. http://www.paulgraham.com/submarine.html

2. http://www.gao.gov/assets/660/657103.pdf (same as [1] in post upstream)

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346381

4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597919

[Natsu]

> Yes, Fonar v GE is a ridiculous one when generalized, and I do wholeheartedly agree that the "enablement" requirement is very weak currently and a ton of patents don't meet it in my eyes. Take the PageRank patent, for one, often cited as an example of a good patent. It is very lacking in implementation details, so much so that a blogger set out to implement it and ended up with a bunch of posts complaining about all the undue experimentation he had to do.

Glad to hear it.

> [4] actually finds EDT is better than others with respect to plaintiff win-rates.

I might be missing something, but I don't see it taking the really high settlement rate into account. If you include those as mostly losses, well yes, Northern California still sucks as well and the overall win rate sucks.

> There is very little "widespread" re-invention going on

Using SSL with RC4, scan to email, pick any "we own the internet" patent, really.

> The order in which you "interpret" or execute those bytes gives you a completely different program.

No, the hardware performs an instruction loop no matter what is in memory or the registers (unless you break it).

> Now consider that you fill that memory up with programs that generate other programs, or variations of themselves. Something like, say, Conway's game of life. I cannot begin to calculate how many different programs that could generate.

None of which fit into the device (you've already used up all memory, remember?). It's also a finite number. You're thinking of a Turing Machine with infinite memory (wish we had one, but we don't). There are functions with finite values that are not computable incidentally (the Busy Beaver function, which incidentally is related to your idea, is one such function). Yes, there are more programs than fit into memory for any finite amount. Sadly, we do not have infinite memory. Yes, you can increase the number of possible programs by adding memory (this should be no surprise to anyone who has ever used a computer and needed more space to install X). Every program (equivalently, every mathematical statement) can be identified with a number. Even this text is nothing more than a very long number. I believe I already mentioned Godel's work.

> no different from the number of ways physical objects can be arranged.

That's infinite, though (as far as physics knows). Anything you can fit into memory will be finite (though it can be extremely large, as you've noticed). One is exhaustible and enumerable, the other is not. The computer is designed to let you put any value whatsoever into its memory. We do not have a general atom-arranger that can make any construct out of matter. Though how I wish we did have one of those from Star Trek! ... I'm sure you'd then have people patent making X with the synthesizer... for every X that already exists. Which is about where we are with the computer, no? That's why we think that new synthesizers (computers) should get patents but not every trivial, already existing X that you can imagine putting on there. At least when it's a new X we can respect it a bit, but when you're doing old X + computer, it gets silly fast, because many, many people can figure out how to do old X + computer ... but the lawyers think it patentable for some reason.

> The computer's properties are not altered?!? It goes from being a heap of semiconductors to actually doing something! How is that different from a machine going from a heap of components to an useful implement?

It goes from executing an instruction loop on no data... executing an instruction loop on data. Yes, the instruction loop was a very fundamental, useful idea, precisely because it can compute any algorithm given appropriate input. The computer is unlike any other invention precisely because we found such a general mathematical construct to put behind it. But the data is just a large number. Yes, printing a few GB of data as a decimal number would run you out of paper, but there's absolutely no reason we couldn't do it.