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Chavoux Luyt
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There seems to be two different arguments going on here and I don't think they are the same: 1. Is software patentable under current law? ("exactly what our forefathers meant in the Constitution") 2. Should software be patentable? It seems as if Mr. Goetz's aticle only addresses the first question. "Software development is similar to general engineering, so it should be patentable." Question 2 is about whether the object of "exactly what our forefathers meant in the Constitution" are being met by software patents. Scientific discovery of natural laws and mathematical algorithms/formulas (the fruit of scientists' labours) are explicitly excluded. The implementation or use of that knowledge in a "useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" is patentable. But it is still possible for anybody to use the laws of gravity or electronics freely develop any new "useful process, machine, manufacture, or composition of matter" of his own. And this is the problem with software patents. Because it is simply an mathematical algorithm implemented in some computer language, it can effectively prevent me from using that same algorithm to develop useful processes, machines etc. Copyright could not protect physical inventions. Inventors could either keep something a trade secret (meaning that the knowledge of how their invention works dies with them and never becomes public knowledge) or make it publicly available (meaning the inventor doesn't get any reward for his work). That problem was (imperfectly) solved by the patents option: making it possible for the inventor to make known how his invention works, but still being rewarded for it. However, copyright can protect software. Implementing an algorithm (= writing software) is a lot of work and can be done in a lot of different ways. Copyright prevents me from stealing the hard work done by somebody who implemented an algorithm to solve a problem. Software patents, however effectively prevent me from using that known algorithm to solve the same problem. For all those harping on software not being mathematics: I don't think anybody (any programmer) will have a problem with software patents if it would still allow me to use the mathematical algorithm (nothing more) included in the patent to solve a problem. :-) The current situation is such that probably all programmers has already used some patented process in their software without knowing it... and I can not see how that could ever have been the aim of patents in the first place.
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Dec 15, 2009