The lie being that software is of patent-able qualities. Software is not of such qualities.

To use an analogy, the roman numeral system, in comparison to the hindu-arabic decimal system, is far to limiting to have been used to calculate the information we needed for us to have created much of what we have today, including computers. Yet it took 300 years for the more powerful and easier to use decimal system to overcome the wide use of the roman numeral system in mathematics and the elite accountants industry.

The key difference was the zero place holder. And of course it was easy to argue that only a fool would think nothing can have value.

Numbers and mathematics are abstractions and programming is also done using nothing but abstraction. Only here the abstractions used extend beyond math, though many will point out that it boils down to a mathematical algorithm.

What would happen should someone come along with the programming zero, that would make programming easy and powerful enough that most anyone can and would do it as they found need to. No different than using a calculator for any calculation one might need at the moment, or spreadsheet calculation, etc..

Non-novel would become more common, there would be a lot more “skilled in the art” or programming, etc.

But ultimately, software is not of patentable qualities as it is entirely made up of abstract ideas, using the natural law and right of human conscious ability to create not just abstraction but higher and higher levels of abstraction. All this has a physical phenomenon effect upon society (if in doubt, google the “trillion dollar bet” and read the transcript and realize the far reaching effect of this abstraction manipulation of value representation).

What is universally accepted as not being patentable:
three primary:
abstract ideas
Physical phenomenon
natural law
secondary:
mathematical algorithms

What happens when you try to contradict physics and nature? You have problems and even death!

It is of no surprise there are problems being caused with software patenting. It’s predictable in a very calculating manner.

The mathematical zero, how simple it is, yet how empowering it is also to a small finite set of abstractions and their use.

So about the programming “zero” well its not just for programmers, but rather an identification of a human quality in ability to create and use abstractions. google “Abstraction Physics”.

The constitution gives the power of patents to the people and requires the government to track and protect those patents in order to promote commerce and wealth. This wasn’t added in a bill of rights amendment but was granted as a core right in the main constitution. Yes, I understand that all amendments are treated as equal to the constitution when interpreted by the court but it is important to realize that our founders recognized the protection of original work to be critical and assumed that a government must give this protection to its citizens.

Article I, section 8, reads “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

So while the anarchists would desire to destroy this because of some very real abuses, it would require one of two actions: a constitutional amendment or a ruling by the Supreme Court that software doesn’t fall into the phrase “writings and discoveries”. So while we can all dream of nirvana, at some time we need to wake up and smell the coffee.

So let’s say someone could make the argument that “discoveries” don’t happen in software but rather it is all intuitively obvious to the most casual observer (a phrase that my old professor of material science used often – may he rest in peace). What Pandora’s box does this open for other patents of physical things. Many things are intuitively obvious once they are discovered and documented but that should not punish the effort of the person that toiled for that first discovery.

The often complained reason for this issue is the amount of effort it takes to create something. Many patents are granted on just a discussion in an application of what could be done. While these are pointed at as being the excesses they are similar to the documentation that is offered for the patents for physical mechanisms and chemical processes. It is also not reasonable to look at development effort since inspiration can happen quickly and different educational backgrounds allow different inspiration. For instance, I am unlikely to be able to have an inspiration on a chemical reaction that would make it cheaper to produce ethanol since I am not a chemical engineer. But, my lack of intuition should not be the benchmark that is used to judge a Noble Laureate with a Chemical Engineering PhD from MIT.

As I look at your site, I see a poll of a dozen programming languages that you are curious if your readers use. It is reasonable to assume that any process that could be “invented” such as “one click shopping” could be implemented in any (most) of those languages and the syntax would likely be dramatically different and even the method of implementation could be dramatically different. Patents in software need to be based on a high level process description because the very words or binary codes that are the core of the implementation are too widely dispersed and subject to rapid evolution as tools and compilers change.

I am very concerned with the issues that you are bringing forward, especially the onerous task that you describe in getting patents issued for your own unique work that you want protected. In a nation that has developed more original inventions and thought processes than any other in the history of time, you are simply a victim of our success and our size. If it was easier to get a patent then everyone could do it with the simplest thought. Making it difficult does help to preclude abuse which is why, IMO, most VCs don’t worry about patents as your article suggests. Most patents are held by major corporations with are more inclined to do cross licensing deals than go to court. While this might be in conflict with the austere goals of our founders in their constitutional writings, it is a logical outcome of its success.

I am not saying that the system is perfect. Very few things that the government does even comes close to that claim (one of the reasons I oppose big government programs and rant about them on my site – see link above).

I look forward to reading your comments in the future as you explore these issues in your upcoming articles. As you present options to be considered, please make sure you think about how they may effect patents of non-software processes.