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02 August 05.
This is just me venting because the Patent Reform Act of 2005 doesn't mention software patents; please don't take it as a reasoned essay. The smart money says the Act is gonna die in committee anyway. I'm obviously biased, but I am increasingly annoyed by the pro-software patents side of the debate. There are loads of pro-software patent commentaries out there: Mr. PZ of Chicago, IL's little near-rant, the majority of the writings of Mr. AHH of somewhere in Germany (who has gotten better with time), the recent book by Mr.s AJ and JL  , and even the extensive hard-to-link-to writings of some of my coworkers like Mr. KD of Chicago, IL. As far as I understand them, all of these guys argue that patent law should be applied to software without modification.What do these guys all have in common? They have little or no idea how to code. They're patent lawyers/academics, and if they know what `Turing completeness' means, they're keeping it entirely to themselves. I don't mean to belittle their abilities---they are mostly lawyers in tech industries and have shown themselves to be smart cookies---but they ain't practitioners. Time and time again, I read from lawyers `software is just like any other form of invention', and from programmers I read `software is vehemently different from other forms of invention.' Judge PP, of London, UK cites another judge who has the modesty to state "I confess to having difficulty in identifying clearly the boundary line between what is and what is not a technical problem for this purpose. That, at least to some extent, may well be no more than a reflection of my lack of expertise in this field." But Judge PP does not cite him as having the wisdom to confess ignorance---no, Judge PP tells us he's thought it through and there is no solution: "Many have tried to frame an acceptable definition, but to the best of my knowledge none have succeeded. It is like the equally vexing question, 'What is Art?'. The hard truth is this: concepts of that sort have no existence." That is, Judge PP observes that there is a debate about drawing some sort of line, and restates the debate in a manner that makes it impossible to resolve. This is not helpful. If the term `technical contribution' is too vague to be a useful guide in the question, throw it out and search for a new vocabulary. The symmetric version of the argument would be for the engineer side to say `they're different for the following reasons' and the law side to say `no, those reasons are illusory for the following other reasons'. However, I have yet to see a pro-software patent author seriously address the distinctions like this. Usually, the response is `Oh, but if you look at it another way, it's all the same'. Again, crappy argumentation, because if two things are the same from one point of view but different from another, then they're just different---especially when the one who insists they're different is the practitioner. Nor does the fact that different engineers draw the line in different places mean that all lines are invalid. The law says that you have to cross in the crosswalk, but some think that if you're walking on the line then you're outside the crosswalk, and some think you're inside. Therefore, the legal side would conclude, there is no definable concept of `crosswalk' and all jaywalking laws should be stricken from the books. Pick one definition, stick with it, and the occasional grumbling about how the line isn't quite in the right place will work itself out. A further problem here is that the legal side naturally looks at it from a `here's how we lawyers do it' perspective and the programmers from a `here's how we engineers do it' perspective. But again, this is asymmetric, because the law should serve the industry, not the other way around. If how we've always done it in patent law differs from how the industry wants to do it, there had better be a really good reason for preserving the patent law. Sometimes there are, but the stock arguments about fostering invention aren't good enough, because the other side has a long list of reasons why it doesn't. Another tip for argumentation: if you say `patents foster innovation' and the other side says `but software patents don't for the following reasons', then `yeah, but patents foster innovation' is not a valid response. Next tip: if there are a few heads of industry and full-time lobbyists arguing a point, and a classroom of twelve-year-olds with blogs arguing the same point, don't focus on the kids. You do get to brush of the idiotic arguments, and there's some value in doing so, but you don't get full points until you've addressed the more serious points too. E.g., this guy critiques people who complain about the massive breadth of patent applications. He points out that they're just applications, and of course the applicant will ask for the moon---doesn't mean the Patent Office is gonna give it to them. He's right, and I too get annoyed by people who forget to distinguish between a patent application and a granted patent. But then a great deal of press is about the obviousness of granted applications, and the page doesn't touch on these. It picked off the easy argument and filled three screenfuls doing it, but it didn't progress serious debate. The usual lawyer's response to the obviousness of granted patents, by the way, is to point out that the details of the patent are not entirely obvious, and are somewhat comparable with the detail of invention of physical patents. First, this is demonstrably false. Since this is a rant and not a coherent essay, I won't go into substantive details. But if the official rules indicate that these patents are good, and thousands upon thousands of experienced programmers think they're bad, then maybe it's time to change the rules. There are often cases where legal consistency makes sense but isn't intuitively obvious, but it is the burden of the law makers to maintain a valid justification for those laws. In general, too many lawyers look upon the engineers whom the law is intended to benefit as idiots. Condescension abounds. Of course, the software industry isn't a monolith, and the guys who show up at these patent attorneys' offices are the software authors who (heart) patents. But to listen to those practitioners who agree and just brush off the majority still takes a little more closed-mindedness than I thought most really smart people were capable of. One side is really pissed off, and the other side simply doesn't comprehend why, and further doesn't have any interest in finding out. They're the status quo, so I guess they don't have to bother. Post hoc ps: Ran across another interview with an IP supporter.
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