Re: [DotGNU]Int'l Herald Trib on Software Patents in Europe

[Seth Johnson]

-----Original Message-----
From: Eric Altendorf <address@hidden>
Date: Tue, 3 Feb 2004 13:05:14 -0800
Subject: Re: [DotGNU]Int'l Herald Trib on Software Patents in Europe

> On Monday 02 February 2004 11:42, j_post wrote:
> > On Monday 02 February 2004 10:14 am, Seth Johnson wrote:
> > > Europe has a chance to take a leadership role by deciding that
> > > software should be treated differently than other inventions,
> >
> > Herein lies the problem, IMHO. It is my opinion (although I realize
> > some will disagree) that computer science and software engineering
> > are applied mathematics. Mathematics is not *invented*, it's
> > *discovered*. So of course software should be treated differently
> > than inventions.


BTW -- that's a quote from the article I forwarded, just so nobody 
gets confused.

The truth of the matter is actually that Europe has already "decided" 
software *is different* and cannot be patented.  So the facts of the 
matter (i.e., the governing law) are really consistent with your 
analysis at present.  It's just a matter of spooking those backroom 
patent lawyer negotiators out of hiding.


> Please!  Nothing is that cut and dry!  Of course I'm against the 
> patent madness going on right now, but the question of whether 
> mathematics is "invented" or "discovered" is a very deep 
> philosophical question which probably has no actual answer.
> 
> If we adopt such a superficial view then we might as well argue, if 
> mathematics is "discovered," then so is physics, and thus so is 
> engineering, and so is everything ever created by a person.  We might
> as well argue that all the great art in the world was just 
> discovered, not created or invented.  (And maybe we could say that, 
> but that only points out the semantics troubles we run into when we 
> try to make these distinctions.)

This is not really so problematic according to traditional (as in eons 
of tradition) views.  This is why things like theories are explicitly 
excluded from exclusive rights coverage -- regardless of whether the 
philosophical question is resolved, the tradition (beyond the last 20 
or so years) has always guarded against ideality being "appropriated."

The distinction that's applied for art is (under copyright) just that 
the aspect of works that evidence original expression is what's 
covered, not the factual and idea elements contained within it.  It's 
worked very well, just to say there are things like facts, ideas, 
theory, etc. that are not "like that."  So you can either decide based 
on that kind of take on algorithms, or based on some sort of pragmatic 
working-out, but still, in Europe the circumstances are much more 
promising, specifically because they made the decision back in the 
70's.

> Who's to say that the abstract plan for the proverbial "better 
> mousetrap" did not exist a priori just as much as a plan for the 
> existence of uncountably infinite quantities?  Writing a proof is a 
> highly creative, personal process which, in my opinion, as a computer
> scientist and mathematician, is as close to "invention" or "creation"
> as anything you do as an engineer (or artist, for that matter).  


I believe we start losing traditional distinctions once everybody's 
got a commodity logic device that can be coded to automate processes 
that required tailored physical implementations before.  The question 
is which direction we should go in, given that.

It was easy to say in the past that one deserved exclusive rights to 
invention, only inasmuch as one actually did "invent something 
(new)."  One of FFII.org's criteria (that an invention must teach 
something new about controllable forces of nature) expresses this 
aspect pretty well.

But now, so many people have simply started saying "innovation" should 
be patentable, thereby evading the implications of the traditional 
legal definition of "invention."


> If anything, the difference between "discovery" and "invention" has 
> more to do with the process used than with the nature of the 
> underlying subject, and thus both physical and mathematical plans 
> could be invented OR discovered.


It's a very venerable tradition that treats these "things" as 
inherently different.


> I think the real question about software patents is probably more 
> pragmatic than all this -- is it really good for innovation, is it 
> just, is it good for society, etc.


Put all that together, sure.  But there's also a strong traditional 
philosophical line to take, that really only needs the right moment to 
gain purchase, finally, once more.

Seth