Friday, March 29, 2013

On Deaf Ears

by Dietrich Schmitz

Today the Electronic Frontier Foundation had a post entitled Texas Court Confirms You Can’t Patent Math | Electronic Frontier Foundation.  It is rather incredulous that it takes a state circuit court to determine a judgment such as this.  The story's first paragraph opens with:

In a victory for open source and common sense, a federal judge has thrown out a patent suit against the Linux-based operating system on the grounds that the patent claims a mathematical algorithm. The case is encouraging both for the result and because the judge ruled at the beginning of the case on a motion to dismiss. This means that the defendant didnt have to waste a fortune fighting this bad patent. We hope the case will be a model for future litigation involving abstract software patents.

A victory indeed but it's really not groundbreaking.  Surely, it is abusive and shows just how 'aggressive' patent trolls are and to what extent they will go to litigate baseless software patent claims. Luckily for the defendant, the judge ruled early on before the case got under way and was saved a substantial sum in litigation fees for fighting a frivolous lawsuit.

Is this the end of these kinds of lawsuits?  I am afraid not.  In fact, the Federal decision which originally introduced software as patentable began in the early nineties.  It was fought hard to keep from happening and one such attempt to petition the U.S. Patent and Trademark Office was made by none other than Donald Knuth.  From his wikipedia biography:

Donald Ervin Knuth (pron.: /kəˈnθ/[1] kə-nooth; born January 10, 1938) is a computer scientist and Professor Emeritus at Stanford University.[2] 
He is the author of the seminal multi-volume work The Art of Computer Programming.[3]Knuth has been called the "father" of the analysis of algorithms. He contributed to the development of the rigorous analysis of the computational complexity of algorithms and systematized formal mathematical techniques for it. In the process he also popularized the asymptotic notation
In addition to fundamental contributions in several branches of theoretical computer science, Knuth is the creator of the TeX computer typesetting system, the relatedMETAFONT font definition language and rendering system, and the Computer Modernfamily of typefaces. 
As a writer and scholar,[4] Knuth created the WEB and CWEB computer programming systems designed to encourage and facilitate literate programming, and designed theMIX/MMIX instruction set architectures
As an important member of the academic and scientific community Professor Donald Knuth is strongly opposed to the policy of granting software patents.[5] He has expressed his disagreement directly to the patent offices of the United States and Europe.
From a story written by Pamela Jones in 2009 is shown below the original letter to the U.S. Patent and Trademark Office, dated February 23, 1994.  The letter makes a persuasive argument for why software should not be patentable.  Pamela Jones writes:

If only they had listened to him then! And what a mess the US patent system has become, because they did not listen. Hopefully, Europe will not make the same mistake. You can find the other amicus briefs and letters submitted to the EPO here, and I'll be publishing several of them here on Groklaw in time, to show more reasons why software patents are viewed as so harmful by programmers, those most directly impacted by whatever decision the EPO's Enlarged Board of Appeal reaches.

Donald Knuth puts forward common sense logic that if computer software is built upon algorithms then it must be mathematically based and therefore cannot be patented.  A passage from his letter:

I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be.  An algorithm is an abstract concept unrelated to physical laws of the Universe.
His reasoned protestations continue for two pages.  So, when I say I am incredulous at today's story it's only because this has been long ago addressed but totally ignored and came from probably the brightest and most respected computer scientist and mathematician in the world.

On Deaf Ears.

-- Dietrich

Knuth Letter Page 1  

Knuth Letter Page 2  

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  1. I agree with Knuth completely. Software is algorithms. Algorithms are not patentable. Thus, how is software patentable?

  2. There you have it! I am incredulous.

  3. You know what they say: "common sense ain't common".


  4. That's a good one! :) I am writing that down.

  5. Sadly, it is in the interests of a bureaucracy to always grow. By extending patents to software, the patent bureaucracy grew, and it is therefore a "Good Thing".

    Abolish the entire patent system.