While I'm not a fan of most software patents, I don't agree with this statement, except in the most pedantic sense: 'The problem is that "software" and "mathematical algorithm" are two terms for the same thing.'
You could say that anything at its root is simply a mathematical algorithm. These days it is possible to do a great many specialized tasks with either dedicated hardware, or software running on general purpose hardware. Should you be able to patent an asic design, but not a piece of software that does exactly the same job? Should incredibly complex and novel pieces of software not be eligible for patents simply because they're made out of 1s and 0s instead of nuts and bolts? Doesn't make sense to me.
What does make sense to me is to reform the entire patent system, in many cases drastically increasing the threshold for what is considered novel and non-obvious, and decreasing - again sometimes drastically - the time periods of monopolies offered. I don't, however, believe that this is solely an issue of software vs. not-software.
You could say that anything at its root is simply a mathematical algorithm.
Nonsense. A brick is not a mathematical algorithm. You can use mathematical algorithms to calculate things about bricks but that's not the same thing at all.
Hyperbole perhaps, but not nonsense. A photograph can be saved as a file on a computer. The file essentially just consists of instructions for displaying the photo. Does that mean photography === mathematical algorithms?
Or yesterday there was a frontpage story about a guy who spent 13 years of his life building a (pretty cool) freeware game. I'm not arguing that he should be able to patent the mechanisms of the game, but not because it's just one big "mathematical algorithm". That's ridiculous; it's a work of art.
To use the example from the article, any design must be described with a sequence of words. You can't patent a sequence of words, so all patents should be invalid. To me, that's not much more of a stretch than saying that all software is simply a collection of mathematical algorithms. Perhaps literally true in a sense, but essentially meaningless.
Edit: By the way, since the perfect patent system is probably a pipe dream, I expect the world would be better off if software patents were abolished. I just don't believe this particular argument holds much water.
It's definitely nonsense. Things with corporeal existence are clearly distinguishable from algorithms. It is unambiguously true that a brick is not an algorithm.
A photograph can be saved as a file on a computer. The file essentially just consists of instructions for displaying the photo. Does that mean photography === mathematical algorithms?
Traditional photography is a chemical process. The shutter opens and the light causes a chemical reaction on the film. Digital photography is an electrical process. Light strikes the sensor causing electrical charges that can be measured and recorded. Both of those are physical processes. Neither of them is an algorithm, although the data either of them produce could be processed by algorithms (e.g. JPEG compression). Moreover, a camera as a product is the sort of thing you could patent. You can tell it isn't an algorithm because you can't load software into a general purpose computer and have the software cause the computer to be able to take photographs without a camera.
I'm not arguing that he should be able to patent the mechanisms of the game, but not because it's just one big "mathematical algorithm". That's ridiculous; it's a work of art.
That's exactly why it's not patentable. For art you get a copyright, not a patent.
To use the example from the article, any design must be described with a sequence of words. You can't patent a sequence of words, so all patents should be invalid.
This appears to be the source of the nonsense. You aren't distinguishing between the words (or algorithms) that describe a thing and the thing itself.
To me, that's not much more of a stretch than saying that all software is simply a collection of mathematical algorithms. Perhaps literally true in a sense, but essentially meaningless.
All software is simply a collection of mathematical algorithms. That isn't meaningless, it's the reason it's impossible for any software to exist that you could load into a computer and cause it to be able to take photographs without a camera.
> To use the example from the article, any design must be described with a sequence of words. You can't patent a sequence of words, so all patents should be invalid.
This appears to be the source of the nonsense. You aren't distinguishing between the words (or algorithms) that describe a thing and the thing itself.
That's exactly my point. By saying that software isn't patentable because it is simply a collection of mathematical algorithms, you aren't distinguishing between the algorithms that describe the thing and the thing itself. Software is literally a collection of data and algorithms, yes, just like a digital photograph. (Although you could stretch further and define data as simply a single-purpose algorithm.) And legally a "collection of algorithms" cannot be patented. But in reality, much like the photograph, there is a great deal more to software than that; there is thought and creativity involved in "collecting" those algorithms. Saying software is a collection of algorithms is akin to saying a book is a collection of words. Literally true, but missing the bigger picture.
And yes, I understand the difference between patent and copyright. I was simply giving an example of something else - a digital photo - that is exactly like software: a collection of data and algorithms. Does that mean that exactly the same laws should apply to software as to digital photographs (and everything else that is simply a collection of data and math)? Of course not, because these things are fundamentally different, and are each more than the sum of their parts.
By saying that software isn't patentable because it is simply a collection of mathematical algorithms, you aren't distinguishing between the algorithms that describe the thing and the thing itself.
With software there is no separate thing. The software is the only thing. If there was a separate thing you could identify it.
You can clearly distinguish between, for example, a physics text describing how bricks are affected by gravity, and an actual brick that you can pick up in your hand. The physics text is not patentable completely regardless of how creative it is or how much work went into producing it. The brick may be patentable, e.g. if you make it out of some novel weather-resistant material.
The problem with software patents is that people making texts and not bricks are being accused of infringing patents.
But in reality, much like the photograph, there is a great deal more to software than that; there is thought and creativity involved in "collecting" those algorithms.
Now you're talking about how the software is produced. The end product is still an algorithm. Are you suggesting that if I write a computer program that can produce other computer programs, the programs produced that way should not be able to infringe any patents because they were created deterministically without any human thought or creativity? Patents have no requirement of creativity. Again, the protection for creative works is copyright, and it applies to software as well as it does to photographs and books.
More to the point, analogizing software to several other things that are all indisputably not patentable is a very poor way of arguing that software should be patentable.
Comments
While I'm not a fan of most software patents, I don't agree with this statement, except in the most pedantic sense: 'The problem is that "software" and "mathematical algorithm" are two terms for the same thing.'
You could say that anything at its root is simply a mathematical algorithm. These days it is possible to do a great many specialized tasks with either dedicated hardware, or software running on general purpose hardware. Should you be able to patent an asic design, but not a piece of software that does exactly the same job? Should incredibly complex and novel pieces of software not be eligible for patents simply because they're made out of 1s and 0s instead of nuts and bolts? Doesn't make sense to me.
What does make sense to me is to reform the entire patent system, in many cases drastically increasing the threshold for what is considered novel and non-obvious, and decreasing - again sometimes drastically - the time periods of monopolies offered. I don't, however, believe that this is solely an issue of software vs. not-software.
Nonsense. A brick is not a mathematical algorithm. You can use mathematical algorithms to calculate things about bricks but that's not the same thing at all.
Hyperbole perhaps, but not nonsense. A photograph can be saved as a file on a computer. The file essentially just consists of instructions for displaying the photo. Does that mean photography === mathematical algorithms?
Or yesterday there was a frontpage story about a guy who spent 13 years of his life building a (pretty cool) freeware game. I'm not arguing that he should be able to patent the mechanisms of the game, but not because it's just one big "mathematical algorithm". That's ridiculous; it's a work of art.
To use the example from the article, any design must be described with a sequence of words. You can't patent a sequence of words, so all patents should be invalid. To me, that's not much more of a stretch than saying that all software is simply a collection of mathematical algorithms. Perhaps literally true in a sense, but essentially meaningless.
Edit: By the way, since the perfect patent system is probably a pipe dream, I expect the world would be better off if software patents were abolished. I just don't believe this particular argument holds much water.
It's definitely nonsense. Things with corporeal existence are clearly distinguishable from algorithms. It is unambiguously true that a brick is not an algorithm.
Traditional photography is a chemical process. The shutter opens and the light causes a chemical reaction on the film. Digital photography is an electrical process. Light strikes the sensor causing electrical charges that can be measured and recorded. Both of those are physical processes. Neither of them is an algorithm, although the data either of them produce could be processed by algorithms (e.g. JPEG compression). Moreover, a camera as a product is the sort of thing you could patent. You can tell it isn't an algorithm because you can't load software into a general purpose computer and have the software cause the computer to be able to take photographs without a camera.
That's exactly why it's not patentable. For art you get a copyright, not a patent.
This appears to be the source of the nonsense. You aren't distinguishing between the words (or algorithms) that describe a thing and the thing itself.
All software is simply a collection of mathematical algorithms. That isn't meaningless, it's the reason it's impossible for any software to exist that you could load into a computer and cause it to be able to take photographs without a camera.
That's exactly my point. By saying that software isn't patentable because it is simply a collection of mathematical algorithms, you aren't distinguishing between the algorithms that describe the thing and the thing itself. Software is literally a collection of data and algorithms, yes, just like a digital photograph. (Although you could stretch further and define data as simply a single-purpose algorithm.) And legally a "collection of algorithms" cannot be patented. But in reality, much like the photograph, there is a great deal more to software than that; there is thought and creativity involved in "collecting" those algorithms. Saying software is a collection of algorithms is akin to saying a book is a collection of words. Literally true, but missing the bigger picture.
And yes, I understand the difference between patent and copyright. I was simply giving an example of something else - a digital photo - that is exactly like software: a collection of data and algorithms. Does that mean that exactly the same laws should apply to software as to digital photographs (and everything else that is simply a collection of data and math)? Of course not, because these things are fundamentally different, and are each more than the sum of their parts.
With software there is no separate thing. The software is the only thing. If there was a separate thing you could identify it.
You can clearly distinguish between, for example, a physics text describing how bricks are affected by gravity, and an actual brick that you can pick up in your hand. The physics text is not patentable completely regardless of how creative it is or how much work went into producing it. The brick may be patentable, e.g. if you make it out of some novel weather-resistant material.
The problem with software patents is that people making texts and not bricks are being accused of infringing patents.
Now you're talking about how the software is produced. The end product is still an algorithm. Are you suggesting that if I write a computer program that can produce other computer programs, the programs produced that way should not be able to infringe any patents because they were created deterministically without any human thought or creativity? Patents have no requirement of creativity. Again, the protection for creative works is copyright, and it applies to software as well as it does to photographs and books.
More to the point, analogizing software to several other things that are all indisputably not patentable is a very poor way of arguing that software should be patentable.