Steve Stites

Thanks for the critique. I will make the master copy of my post more nuanced before I post it elsewhere.

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Steve Stites

Computers were invented independently by Britain, the United States, and Germany during WW II. The defining feature of a computer is that it has an instruction set, typically 100 to 200 instructions, which can be used in an infinite variety of ways without having to make any changes to the computer hardware. This instruction set is the sum total of every function that a computer is capable of doing.

Computer programs are algorithms. A programmer creates a list of instructions for the computer to follow. The programmer structures the list so that the computer does some complex function that the programmer considers useful. A simple program might contain thousands of instructions. A complex program might contain millions of instructions. A programmer keeps his programs from descending into chaos by creating algorithms within algorithms within algorithms. No computer program creates, alters, or destroys any of the computer hardware instruction set.

Computer programs are algorithms. The very first patent law passed by Congress said that algorithms cannot be patented and that part of patent law has never changed.

Since computers were invented during WW II computer programs are protected by copyright. In the United States there is a body of copyright case law developed
from about 1954 onward which is consistent and works well. Copyright of computer software works well both from a business and a legal standpoint. It still works well in spite of the mess created by inventing software patents in addition to copyright.

In 1994 a group of lawyers confused the U.S.Supreme Court into thinking that their software should be granted a patent because the software changed a machine's functions thus creating a new machine. So the Supreme Court ruled that any software which changed a machine's function could be patented. When the Supreme Court invented software patents on a legal fiction in 1994 computer software became the only thing protected by both copyright and patents. The copyright law continues to work well and the software patents has created an utter mess in the software industry.

The legal fiction that the Supreme Court created was that a computer program changes the physical machine that it runs on into a new machine. The new machine produced by the software is patentable. Therefore all computer software patents "reference the hardware" i.e. they claim that the new software running on a machine creates a new machine.

Any technician, whether hardware or software, will tell you that this claim is nonsense. The machine runs the instructions given to it by the programmer in the order stated and no new instructions are created or any instructions altered. Absolutely no hardware changes occur. Indeed, one of the goals in creating programmable computers was to stop having to redesign and rebuilt a new machine for any new application.

Lawyers, on the other hand, blithely forge ahead swamping the Patent Office with thousands of patent applications weekly, each making the fantastic claim that their software changes a machine. The Patent Office thinks that they have to accept this nonsense because the Supreme Court has ruled that they have to.

One way that the software patent problem could be solved is by the Patent Office strictly follow the 1994 ruling. Each software patent applicant should be asked exactly what hardware functions are changed by the software. The lawyers will never be able to answer that question even with the help of their company's technicians. All software patent applications will be denied.

Another way that the software patent problem could be solved is by each defendant in a software patent infringement case ask the plaintiff exactly what hardware functions are changed by the software. The plaintiff's lawyers will never be able to answer that question even with the help of their company's
technicians.

If either of these proposed solutions is used then the problem will eventually land in the lap of the U.S. Supreme Court. If we use a little foresight then the companies which oppose software patents will arrange a test case where it is obvious to the intelligent layman that the software changes no hardware. Then we should race to get that case to the Supreme Court first before some case goes to the Supreme Court with multiple issues and the imaginary hardware change is only one of several issues.

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Steve Stites