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Petition for a Software Patent Free Europe

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I recently came across this site:

http://petition.eurolinux.org/index_html?LANG=en

Basically, I have no idea what the first page is about, lol. It says:

I am concerned by current plans to legalise software patents in Europe, considering their damaging effect on innovation and competition.
First off, I'll define my terms:

Computer software is an intangible part of a computer.

Computer program is software with an interactive interface (for interaction with user).

Source code is text which when translated by a certain compiler generates a series of CPU instructions.

Source code of a computer program is source code which when translated by a certain compiler generates a series of CPU instructions which execute as that computer program.

An algorythm is a stencil method which describes the steps which need to be performed to successfully complete a certain task.

Analogously: A computer algorythm is a part of source code which describes the steps required to perform one certain task.

Code snippet is a part of an algorythm, usually its essential part.

Therefore, according to my terms, the person behind the abovementioned site is against legalizing software patents, i.e. all software (in his opinion) - meaning operative systems, media players, computer games, internet apps, text/image/sound editing programs, etc. - should be free.

This is totally crazy, which is why I'm even considering the possibility that my definitions are inconsistent with his. Let me make some things clear - I think it is OK for a programmer to want to give out for free whatever source code he's written, IF it is his choice. I also think it is okay that it is not possible for algorythms (see definition) and code snippets to be patented or copyrighted (I can provide reasons if necessary). I also think that it should be possible to copyright source code of a computer program (see definition).

Having said this, let me get back to the site in question. This person also says:

I am concerned by the possible use of software patents to patent business methods, education methods, health methods, etc.

Again, according to what definition the word "software" is used is unknown to me. However, I gather enough information from this sentence to conclude that his concern may be legitimate (but it still depends on his definition). I'll explain. IMO, Patenting a method should not be possible. If it was, it would be OK for Einstein to patent E=mc^2. Since I don't know what he means by "software," I'll assume first that he means "computer algorythms."

In this case, his concerns are legitimate. An algorythm is indeed a method which needs to be discovered, much like a mathematical formula. Just as no one can sell you the instructions on how to do something, no one should be able to sell you an algorythm.

If, however, I assume that our definitions indeed do not clash, then I need to check what this Europe's Parliament Directive states. The site gives a lot of links, but basically none of them has any information on it which would be important in my decision making, in other words, I can't find the text of the directive (makes me wonder what kind of a petition it is that does not give the link for you to actually read what it's supporting). I found some links, but all the important pages are empty (!).

What I am asking is that someone set my definitions straight, or explain to me what the person behind that site is talking about.

Edit: This was originally meant as a thread on Open Source, but this confusion of mine with the terms that were used on the site has diverted my points to something else, which doesn't seem to be fully consistent with the topic of this particular forum. However, once my confusion is resolved, I'm going to ask my questions in this thread, so I'll ask the moderators to keep the thread here if possible.

Edited by source
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First off, I'll define my terms:

Computer software is an intangible part of a computer.

Computer program is software with an interactive interface (for interaction with user).

Source code is text which when translated by a certain compiler generates a series of CPU instructions.

Source code of a computer program is source code which when translated by a certain compiler generates a series of CPU instructions which execute as that computer program.

An algorythm is a stencil method which describes the steps which need to be performed to successfully complete a certain task.

Analogously: A computer algorythm is a part of source code which describes the steps required to perform one certain task.

Code snippet is a part of an algorythm, usually its essential part.

The difference between computer software and a computer program is ambiguous. I would consider them to be the same thing, simply a set of instructions that tell the computer what to do. Programs aren't required to have a user interface.

A computer algorithm is a computer procedure which takes in some values(s) as inputs and produces some value(s) as an output.

Therefore, according to my terms, the person behind the abovementioned site is against legalizing software patents, i.e. all software (in his opinion) - meaning operative systems, media players, computer games, internet apps, text/image/sound editing programs, etc. - should be free.
This is not the case. Software copyrights still hold if software patents are illegal.

This is totally crazy, which is why I'm even considering the possibility that my definitions are inconsistent with his. Let me make some things clear - I think it is OK for a programmer to want to give out for free whatever source code he's written, IF it is his choice. I also think it is okay that it is not possible for algorythms (see definition) and code snippets to be patented or copyrighted (I can provide reasons if necessary). I also think that it should be possible to copyright source code of a computer program (see definition).

Source code can be copyrighted and compiled programs can be copyrighted. The argument against software patents is essentially making illegal to patent an algorithm or type of program that performs a certain task. For example, Microsoft patenting "spreadsheets", so that no other spreadsheet program besides Excel could exist.

Again, according to what definition the word "software" is used is unknown to me. However, I gather enough information from this sentence to conclude that his concern may be legitimate (but it still depends on his definition). I'll explain. IMO, Patenting a method should not be possible. If it was, it would be OK for Einstein to patent E=mc^2. Since I don't know what he means by "software," I'll assume first that he means "computer algorythms."

Patenting an algorithm would be exactly like patenting a mathematical formula. I think this is just a case of confused definitions.

Here is a small explanation about patents from a link I followed from the original site you linked: Why all this fury about software patents?

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The difference between computer software and a computer program is ambiguous.  I would consider them to be the same thing, simply a set of instructions that tell the computer what to do.  Programs aren't required to have a user interface.

I didn't like the programs definition either. Anyway, thanks for clearing this software confusion up.

A computer algorithm is a computer procedure which takes in some values(s) as inputs and produces some value(s) as an output.
Or simply rearranges them, as for example sorting algorithms do. OK.

This is not the case.  Software copyrights still hold if software patents are illegal.

So, the difference then is that if I have a copyright no one may copy source code, and if I patent the program, then no one may copy what the program does, regardless of source code being the same or different?

Also, does making software patents illegal, prohibit patents such as say Amazon's One-Click ordering?

Source code can be copyrighted and compiled programs can be copyrighted.  The argument against software patents is essentially making illegal to patent an algorithm or type of program that performs a certain task.  For example, Microsoft patenting "spreadsheets", so that no other spreadsheet program besides Excel could exist.
Isn't a "spreadsheet" an invention made by Microsoft? If so, do they not have a moral right to patent it?

Patenting an algorithm would be exactly like patenting a mathematical formula.  I think this is just a case of confused definitions.

That IS what I said. Now I'll be trying to figure out what THEY want to make illegal.

Here is a small explanation about patents from a link I followed from the original site you linked: Why all this fury about software patents?

Thanks.

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So, the difference then is that if I have a copyright no one may copy source code, and if I patent the program, then no one may copy what the program does, regardless of source code being the same or different?

You hit the nail right on the head!

Also, if you have a copyright, no one may copy the binary code (= the CPU instructions generated from the source code) without your permission. So you can ask whatever price you want for your program and place whatever conditions you want on how people may use it.

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So, the difference then is that if I have a copyright no one may copy source code, and if I patent the program, then no one may copy what the program does, regardless of source code being the same or different?

Also, does making software patents illegal, prohibit patents such as say Amazon's One-Click ordering?
This is where the water gets a little murky. My argument against software patents is that you can't patent a method or idea. Amazon can copyright their website in that nobody could copy their HTML and use their exact same design for their own website. But how can you patent the idea of "one click ordering"? Anybody could implement a website to automatically charge a customer in a single click. Doing so wouldn't violate Amazon's supposed "invention".

Isn't a "spreadsheet" an invention made by Microsoft? If so, do they not have a moral right to patent it?

No, the first widely used spreadsheet program that I have recollection of is Lotus 123, it came long before Excel and I doubt if it was even the first. Excel is (debatably) just a much better program and Lotus 123 couldn't compete. If you look at what a spreadsheet program actually is, its simply a program that analyses and manipulates rows and columns of data. That in itself is not something that can be patentable.

Put in the context of a word processor, or simply a text editor. If someone could patent the concept of a text editor, this message board would be stealing someone's "invention".

That IS what I said. Now I'll be trying to figure out what THEY want to make illegal.

The underlying principle behind the argument against software patents is to prevent people from patenting software concepts (types of programs) and algorithms (methods of programming). If software concepts could be patented there would be one operating system, one word processor, one spreadsheet, one web browser, etc.

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OK, my whole post just got deleted (even after all the percautions I made :D ), so I'm giving it a second attempt which may not be as good as my first one.

I was replying to Bryan.

Basically, I still don't understand why someone shouldn't be able to patent a type of program, or at least some idea this program relies on (such as spreadsheets in Excel) if indeed he created it first (leaving aside whether or not Microsoft really did).

What you are saying are not reasons why such patents should be illegal, but consequences of what happens when they are legal. We can't judge a certain course of action by its consequences, because we have to make a principled decision before the consequences take place.

So I'm asking, why is it wrong to patent a certain type of program (given that you created it first)?

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My argument against software patents is that you can't patent a method or idea.

Although, the US patent office indicates "Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof", which virtually quotes USC Title 35 part II Ch. 10 §101 -- "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." You might recal Stac Electronics which had some drive-compression algorithm that MS appropriated in some version of DOS (6-something I think), and Stac was actually awarded $120 million for patent infringement. MS then constructed their own compression algorithm (I doubt it cost them $120 million in development consts).

The key issue, as I understand it, is specificity: hence Stac did not patent the concept of compression, only a specific algorithm; AMD used to knock off Intel clones not by copying the circuitry, but by independently inventing a chip that functions the same (usually). Another confusing issue is that courts have held that you cannot patent laws of nature, scientific phenomena, or mathematical formulae, and I don't see how a distinction is made between a mathematical formula and an algorithm (the essential cases, I guess, are Gottschalk v. Benson, 409 U.S. 62, 72 and Parker v. Flook, 437 U.S. 584, 596, neither of which I have read).

The EU situation involves the further horror of the EU. Normally, if a government decided that software should not be petentable, then patent laws would be written so that software isn't included in patent protection. In the EU, though, you have meta-laws that direct nations to have or not have certain laws, which means that it is possible for a patent to be illegal.

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Now, does this mean that you could copyright a mathematical function?  I don't know, maybe, but what would be the point?  For every mathematical function that could be copyrighted, there are an infinite number of others which are functionally equivalent, but wouldn't be copyrighted.

Careful, copyright != patent. Copyrights have always existed for software and their application is pretty clear: You cannot copy what the owner has written (i.e., the source code or the binaries generated from the source code) without the owner's permission. It is patents where things become unclear.

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I never really understood the fundamental difference between them anyhow, does anyone here know?  I know that copyrights apply to books and software, and that patents apply to inventions, but what is the fundamental characteristic that separates them?

Patents are for inventions, while copyright is for content. To concretize: "A facility that allows the insertion of emoticons into posts by clicking on the image of the desired emoticon" is a candidate for a patent, while the images used for the individual emoticons are candidates for a copyright.

The current problem with patents, in software and elsewhere, is that people often apply for a patent for the most trivial "inventions" (such as one-click purchasing) and such patents are all too often granted.

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The current problem with patents, in software and elsewhere, is that people often apply for a patent for the most trivial "inventions" (such as one-click purchasing) and such patents are all too often granted.

I don't understand. Is that bad?

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I don't understand. Is that bad?

Yes, because a simple, common-sense gain in efficiency is not an invention. An invention is that which goes beyond the common sense; that which is truly your idea and couldn't have been "invented" by any person with half a brain cell.

Patenting a trivial "invention" is analogous to copyrighting a trivial text, such as "DO NOT USE ELEVATOR IN CASE OF FIRE." I like the elegant terseness of that sentence, but that hardly qualifies it as a literary achievement that deserves to be protected as its author's intellectual property.

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Fine... patents or which ever.  I never really understood the fundamental difference between them anyhow, does anyone here know?  I know that copyrights apply to books and software, and that patents apply to inventions, but what is the fundamental characteristic that separates them?
Except for the area of potential intersection, namely process patents, you patent "stuff" and copyright abstractions. They are governed by different laws and federal offices (Library of Congress vs. US Patent Office). For example, there is the "fair use" exception with copyrights, which does not exist for patents. Patents have to pass the tests of "usefulness" and "non-obviousness", which is not required of copyrights. Patents expire 14-20 years from issue, copyrights are for the life of the author plus 70 (at the moment: it used to be less). It appears that patent infringement awards tend to be higher than copyright infringement (hundreds of millions for patent infringement), though that may be due to the nature of a patent infringer vs. a copyright infringer.
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Patents have to pass the tests of "usefulness" and "non-obviousness"

This is what I was getting at in my previous post. I would welcome a higher standard for what is considered "non-obvious." (I know many things that are obvious to me are not obvious to others, but the solution to that is for people to start thinking more so things become more obvious to them! :D)

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Yes, because a simple, common-sense gain in efficiency is not an invention. An invention is that which goes beyond the common sense; that which is truly your idea and couldn't have been "invented" by any person with half a brain cell.

Patenting a trivial "invention" is analogous to copyrighting a trivial text, such as "DO NOT USE ELEVATOR IN CASE OF FIRE." I like the elegant terseness of that sentence, but that hardly qualifies it as a literary achievement that deserves to be protected as its author's intellectual property.

OK, at this point everything seems like we're using double or even triple standards to determine what IS patentable and what isn't. You say that "A facility that allows the insertion of emoticons into posts by clicking on the image of the desired emoticon" is a candidate for a patent, but "one-click ordering" system isn't. Aren't both just "common-sense gains in efficiency?"

What about spreadsheets? CAN they be considered an invention, or are they too just a gain in efficiency? Please leave aside the issue of whether or not Microsoft invented it, as I am currently only interested in finding out the basic principle by which I could unambiguously determine whether a certain thing is patentable or not.

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You say that "A facility that allows the insertion of emoticons into posts by clicking on the image of the desired emoticon" is a candidate for a patent

What I meant by that is merely that it is the kind of thing one would patent rather than copyright. I did not mean to imply that I would support a patent for it.

What about spreadsheets? CAN they be considered an invention, or are they too just a gain in efficiency?

On the face of it I would say they can.

Perhaps a good test for patentability would be to ask a number of experts in the particular field to come up with a quick solution to the problem in question and if any of them gives the same solution as the inventor, it would not be patentable.

So, to determine the patentability of the spreadsheet, the patent office would ask a number of programmers to provide their "off-the-cuff" solutions for a program that allows the users to do flexible number-crunching. If they cannot quickly think of the tabular scheme of formulas used in spreadsheets, then the spreadsheet is patentable, as it is a non-obvious idea. (Naturally, this would have to be done before the spreadsheet becomes famous!)

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Perhaps a good test for patentability would be to ask a number of experts in the particular field to come up with a quick solution to the problem in question and if any of them gives the same solution as the inventor, it would not be patentable.

That's really a dubious way to deal with patents, and certainly impractical. Not to mention that a great deal of fraud can come from it. Say someone doesn't want you to patent something - if someone in the patent office is corrupted, they can arrange that certain experts "re-invent" whatever you invented and voilla: your request for a patent is denied. I don't really see this as a viable solution.

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The first spreadsheet software was ViciCalc, released in 1979, but the term “spreadsheet” was used to refer to paper spreadsheets prior to that. (Microsoft Excel was released in 1985.) Visicalc was not patented because prior to 1981, software could not be patented at all. Bill Gates is actually responsible for initial push to recognize software as property in response to widespread piracy of BASIC.

I am opposed to the idea of software patents because it's impossible to define an objective standard as to what should and should not be patentable. It's rather like trying to patent the plot of a book or a business strategy. There is plenty of evidence for the problems created by non-objective patent laws. Software companies spends many millions and pay out billions of dollars in software patent lawsuits every year. Most of today's best known software such as Microsoft Windows and Office would not exist if software patent laws were as draconian then as they are now. There are companies today whose primary source of revenue is to dig up obscure patents and sue the major software makers for billions of dollars.

Edited by GreedyCapitalist
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This is what I was getting at in my previous post. I would welcome a higher standard for what is considered "non-obvious."
I agree: I can't say that I find whatever makes Amazon's "one click" feature anything revolutionary. Google, that's another matter. Apparently, Microsoft patented double-clicking (Patent 6,727,830). I dunno, maybe there is some brilliant insight buried in there. Danged if I can figure out what.
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I am opposed to the idea of software patents because it's impossible to define an objective standard as to what should and should not be patentable. 

I'm surprised you say this, David. Why can't the standards of novelty, non-obviousness and usefulness apply to software?

There are companies today whose primary source of revenue is to dig up obscure patents and sue the major software makers for billions of dollars.
If this is true, something has gone badly wrong with patent law in the six years since I last worked with it.

In my experience, the patent holder was deemed to have a positive duty to defend his patent against infringement. A failure to do so for any significant amount of time would render the patent unenforceable. If an infringing product appears, you must make an initial effort to get the offender to withdraw it from the market within a few weeks of its appearance -- or your right to claim infringement begins to decline rapidly. You cannot wait until the infringer has been on the market for a year then demand that he withdraw.

In addition, a patent that is not commercialized within a reasonable time is deemed unenforceable. You cannot patent something, stick the patent in a desk, and wait until an infringer comes along 3 years later. Since you have received no economic benefits from the patent, you would have no basis for a claim of damages against an infringer.

Thus, obscure patents (ones that the inventor never commercialized) cannot be invoked after years of infringement by new programs. This, at any rate, was the situation when I worked extensively with patents during the 1990s. Have these rules been changed?

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I'm surprised you say this, David.  Why can't the standards of novelty, non-obviousness and usefulness apply to software?

The standards apply, but due to the nature of the medium, its impossible to apply them objectively to software. There are many man-made creations which meet these criteria but are not recognized as property.

Thus, obscure patents (ones that the inventor never commercialized) cannot be invoked after years of infringement by new programs.  This, at any rate, was the situation when I worked extensively with patents during the 1990s.  Have these rules been changed?

Do you follow technology news? Every week I hear about one company or another who gets extorted for millions of dollars because someone dug up a trivial and long lost patent.

Some patents approved by the Patent Office: the hyperlink, the browser plugin, online encryption, and pay-per-view. Someone quipped that the U.S. P.O. gives a patent for any everyday activity with the phrase “with a computer network” added to it.

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That's really a dubious way to deal with patents

What do you mean by that?

and certainly impractical.

Why?

Not to mention that a great deal of fraud can come from it. Say someone doesn't want you to patent something - if someone in the patent office is corrupted, they can arrange that certain experts "re-invent" whatever you invented

This can be avoided very easily: When you apply for the patent, you don't name your solution, just the problem. You keep your solution a secret; this guarantees that it cannot be "re-invented" (provided, of course, that it's really non-obvious). After the experts fail to re-invent it, you name the solution and you are granted the patent.

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What do you mean by that?

Why?

To answer both questions: it is dubious and impractical because it is not based on principles and I really don't see WHAT it is based on. You could just as well play a poker game with the guys at the patent office and if you win you get the patent.

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The standards apply, but due to the nature of the medium, its impossible to apply them objectively to software. 

What is it about the nature of the medium that makes it impossible to apply standards objectively?

There are many man-made creations which meet these criteria but are not recognized as property.
Can you give some examples?

Do you follow technology news?  Every week I hear about one company or another who gets extorted for millions of dollars because someone dug up a trivial and long lost patent.
I must admit, I do not follow technology news very closely. Can you give us a link to such a story?

Some patents approved by the Patent Office: the hyperlink, the browser plugin, online encryption, and pay-per-view. Someone quipped that the  U.S. P.O. gives a patent for any everyday activity with the phrase “with a computer network” added to it.
Perhaps it should be, but it is not obvious to me why these things should not be patentable.

One must also look closely at a patent's claims to see what sort of coverage has been granted. One cannot go simply by the patent's title.

In an effort to see the claims in the hyperlink patent, I googled "hyperlink patent" and came up with numerous stories about BT losing its patent infringement case based on its hyperlink patent. Here is a story that reveals how little coverage the BT patent's claims provided: here.

The BT case has been thrown out by the judge in a summary judgment motion just 5 months after it was filed. That is quite fast by legal standards.

The fact that some invalid software patents are issued does not argue against all such patents, does it?

In a mixed economy such as ours, there are all sorts of bad laws passed, often in response to bribes from businessmen who want to use the law to beat up on their competitors. We should oppose those specific laws, but not all laws.

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To answer both questions: it is dubious and impractical because it is not based on principles and I really don't see WHAT it is based on.

It is based on the principle of non-obviousness. If your solution is obvious, the experts will find it and the patent will be denied. If your solution is not obvious, the experts will not find it and the patent will be granted.

I am surprised you do not see how it works. Perhaps a couple of examples will help:

1. Unsuccessful patent application

Amazon wants to patent its idea of the one-click purchase, so it sends a representative to the patent office.

Amazon Representative: "My company has invented a novel way of buying things online."

Patent Office: "How is it superior to the conventional online shopping solutions?"

Amazon Representative: "It saves the shopper the drudgery of entering his credit card and shipping details for each individual purchase he makes."

Patent Office to Web Programmer #1: "Can you quickly come up with an online shopping solution that saves the shopper the drudgery of entering his credit card and shipping details for each individual purchase he makes?"

Web Programmer #1: "Why, you just ask the shopper for the info once, save it using a cookie or some similar mechanism, and next time he wants to buy a product, he just clicks on it and you deliver it using the info he gave."

Web Programmers #2 to #5 give the same solution.

Patent Office to Amazon Representative: "What is your solution?"

Amazon Representative: "We ask the shopper for the info once, save it using a cookie, and next time he wants to buy a product, he just clicks on it and we deliver it using the info he gave."

Patent Office: (showing the Web Programmers' answers to the Amazon Representative) "Your application did not pass the test of non-obviousness, therefore it is denied."

2. Successful patent application

VisiCalc Representative: "We have invented a novel way of performing business calculations."

Patent Office: "How is it superior to the conventional ways of performing business calculations?"

VisiCalc Representative: "Conventionally, people do these calculations manually, on paper, which means that if they want to change a single figure anywhere, they have to recalculate everything. Our solution is a software program that automates the recalculation."

Patent Office to Programmer #1: "Can you quickly come up with a design for a program that does business calculations and automatic recalculations?"

Programmer #1 gives a solution that does not include the major features of VisiCalc, such as the tabular format, user-editable formulas with absolute and relative references, etc.

Programmer #2 cannot come up with a solution.

Programmers #3 to #5 also fail to name the innovations in VisiCalc.

Patent Office to VisiCalc Representative: "What is your solution?"

The VisiCalc Representative shows the program to the patent officer and explains its innovative features.

Patent Office: "The programmers we asked did not name these features, so they are indeed non-obvious. They shall be recognized as your intellectual property."

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What is it about the nature of the medium that makes it impossible to apply standards objectively?
I tried to read the MS patent on double-clicking and it seemed to me quite vague. MS's goal was to lay a claim to something more than just a specific bunch of source code (which would be very specific). So the question potentially arises, how do you determine if some new product infringes on the MS patent on double-clicking? For example, they claim to have invented a way of "expanding the functionality of an application button on a limited resource computing device". The first question that comes to mind is, what is a "limited resource computing device"? Is that in contrast to those every-day infinite-resouce computing device? Does that include my toaster? What's an "application button"? Now perhaps the full document on file with the government somehow makes their claim to ownership more specific, but what they basically did was patent most input devices such as mice, joysticks, and keyboards. Although I'm sure no court would interpret their patent as covering keyboards. The point is that like anti-trust laws, it seems to me that there's no way to know in a specific instance if you've infringed on their patent. There should not be a patent on the idea of double-clicking, only on a particular method of double-clicking, yet I don't see how the MS patent is anything but a patent on the idea itself.
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