Beginning of the end for the patent wars?

It’s all over the net today. As I repeatedly predicted, the patent claims in the Oracle-vs.-Java lawsuit over Android have completely fizzled. Oracle’s only shred of hope at this point is that Judge Alsup will rule that APIs can be copyrighted, and given the extent of cluefulness Alsup has displayed (he mentioned in court having done some programming himself) this seems rather unlikely.

Copyright damages, if any, will almost certainly be limited to statutory levels. There is no longer a plausible scenario in which Oracle gets a slice of Android’s profits or an injunction against Android devices shipping.

This makes Oracle’s lawsuit a spectacular failure. The $300,000 they might get for statutory damages is nothing compared to the huge amounts of money they’ve sunk into this trial, and they’re not even likely to get that. In effect, Oracle has burned up millions of dollars in lawyers’ fees to look like a laughingstock.

Surely it has to be dawning on CEOs who think they can monetize junk software patents that their hit ratio has been pretty dreadful. The SCO-vs.-IBM lawsuit in 2003 set the pattern; victories have been few and small, losses frequent and much larger. Nobody is winning this game except the lawyers.

It’s not just the legal fees that will hurt Oracle’s bottom line; Oracle’s reputation for competence and good strategy took a hit today. Side-by-side with SCO in the gallery of big-time losers is not anywhere a technology company wants to be.

Could this be the beginning of the end for the software-patent wars? The outright trolls won’t cease trolling, because patents are the only assets they have. But we may be nearing the end of the era when major technology companies find patent litigation to be cost-effective. Speed the day.

82 thoughts on “Beginning of the end for the patent wars?

  1. At the very least, hire a different legal team. Both SCO and Oracle hired the same legal firm to pursue IBM and Google.

  2. Oracle had a reputation for competence ? Since when? Any company that won’t tell you how much it’s going to charge you for its software until you tell it what hardware you’re going to run it on has something wrong in its DNA.

  3. The biggest challenge as I see it is not Oracle vs Google, it is Oracle vs small little start up guy with a disruptive idea, and the chilling effect that has so that small little start up guy doesn’t even bother.

    It also needs to be said that MS is taxing every Android install, from what I hear. So hardly the end, not ever, I fear the end of the beginning.

    I might well ask this question: why exactly did Android go with Java for their core app language? Objective C then Java? There are so many better choices out there.

    (FWIW, unfortunately the future of app programming is HTML + javascript — shiver.)

  4. PJ,

    A crappy product from an evil software company that gets the job done is infinitely better in quality than a sterling product from the open source hippie commune that doesn’t.

    That’s why Windows and Exchange are irreplaceable in corporate deployments. It’s why a good chunk of the global economy runs on Excel. (No, really.) It’s why Oracle RDBMS is the gold standard for large data sets: it has reliability, scalability, performance, and tooling that none of the other cross-platform RDBMS packages match. PostgreSQL has been in a state of kinda-sorta-almost-there for years now; with the addition of replication support, maybe PostgreSQL has a shot at being the industry leader in a few years. Maybe.

  5. The biggest challenge as I see it is not Oracle vs Google, it is Oracle vs small little start up guy with a disruptive idea, and the chilling effect that has so that small little start up guy doesn’t even bother.

    Then be glad it’s Google who stepped up to the plate with their expensive little team to score one for the small little startup guys with disruptive ideas. Because if it were up to them to mount this kind of defense, unless they could Kickstart or otherwise crowdfund their legal defense, they would’ve settled on like, day 2 and Oracle would have incentive to go after someone else.

    I might well ask this question: why exactly did Android go with Java for their core app language? Objective C then Java? There are so many better choices out there.

    Wish I knew. Because it’s accessible and familiar, I guess. It’s really not that different from C#, but sometime in the early 2000s architecture astronauts got their hands on it, and now “Java” has become associated with crufty XML files and heavyweight object decorator factory factory factories. The core language itself isn’t that bad, and there’s very little of that stuff in Android development. I can bang out a new, basic Android app in an hour or two, easy.

    I’m disappointed that Google didn’t opt to use a native stack all the way down, though. By choosing Java they crippled the performance of all Android devices: the latest iPhone usually outperforms even high-end Android handsets, despite possibly having a slower CPU, simply because its software stack is pure native code.

    And don’t knock Objective-C. It’s basically an embeddable micro-Smalltalk without GC or blocks (though those have been added). Think what COM would look like if it were lightweight and didn’t look like a plate of hurl. The funky syntax is a bodge to get Smalltalk semantics in there without compromising 100% C backwards compatibility. You get used to it. It’s easier to decipher than C++.

  6. Google went with Java for Android because they bought it, and the folks who built it (ex-Danger) were all Java developers.

    But even ignoring that, whatever problems Java may have (and there are a legion), what were the realistic alternatives (emphasis on realistic) seven years ago?

  7. Meh. This crap will continue to be litigated until software patents are made illegal. I’m not holding my breath until that happens.

  8. If Alsup rules against Oracle with respect to copyrightability of API’s, I’m hoping he writes a good clear memorandum opinion on it. Ninth Circuit copyright law is a horrible mess in part because of some stupid judicial work in the area.

  9. Glen Marshall writes: This crap will continue to be litigated until software patents are made illegal.

    I disagree. This crap will continue to be litigated until software patents are no longer perceived lucrative. Smart companies don’t do shit that will cost them money in the long run. Not-so-smart companies don’t do shit that will cost them money in the short run. Dumb companies do all that shit and run out of money.

    To be more precise and fair, I should say “shit that *they think* will cost them money”. Even smart companies commit errors in thinking. And, if software patent law, and its generalization, IP law, present an environment favorable to litigation, then litigate they will. (And maybe this is what you meant and we’re really agreeing.)

    There’s a tract I keep reading partway through and lacking time to fully grok, describing four distinct approaches to IP law. I figure, if I’m to develop any sort of deep understanding, it’ll have to include that. Otherwise, all of this is necessary Greek to me, lamentably.

  10. Patents – always an horrific idea….yet clumsily applicable to earlier times when inventions were tangible widgets.

    The notion that you can legally outlaw the thought-product of a human mind…..utter evil.

    I have been involved in the software patent world, and have very deep scars to prove it. It *was* the most unpleasant experience of my software-technology life. I once resented it with a vitriolic passion, but perversely cam to embrace it much as Ripley embraced the newborn alien as she plunged into the smelting pit…..I began to cheer the explosion of software patents as I knew that they were ultimately indefensible and would result in an inter-attrition depletion of will and resources. In short, the fire would burn itself out.

    Maybe this is the beginning of that process.

  11. But even ignoring that, whatever problems Java may have (and there are a legion), what were the realistic alternatives (emphasis on realistic) seven years ago?

    How about not enforcing a language or VM platform at all? How about native code with kernel-enforced sandboxing? Then you could develop in C, Objective-C, Java, Lua, Python… whatever suits your fancy.

    I’ve seen (and been indirectly involved with) iOS apps written in Scheme ferchrissakes. If that’s not awesome, I don’t know what is. I say “indirectly” because while I’m not an iOS developer myself I did write some handy Gambit macros that let you quickly cruft up some Objective-C bindings, and they were used to develop at least one app.

  12. That’s why Windows and Exchange are irreplaceable in corporate deployments.

    Really? That’s why at least 3 companies I’ve done business with over the past 2 years are in the process of migrating to Mac laptops + Google Apps? Yeah, they’re still using Word/Excel/Powerpoint, as the competition isn’t completely there yet, but Exchange sucks donkey balls, and MacOS X is an excellent desktop platform that doesn’t at present have nearly the number of security threats in the wild (though, I assume that will change as adoption increases).

  13. I really hope that Oracle just does the ‘right thing’ (TM) by thrusting its head in the sand for a while, but I sincerely doubt we’re hearing the last of this noise. If you take a moment and contemplate the revenue they could get from royalties, a few million wasted in legal fees thus far isn’t that big of a setback. I also don’t recollect Oracle ever caring about how they’re perceived by being Oracle.

    If they can find a way to try again, they will. The pot of gold at the end of the proverbial legal rainbow is just too big. That’s what makes me sick about patents, it’s not about protecting your innovations, it’s about legally picking the pockets of people that succeed with something similar.

    It’s going to take an astounding level of metacognition on their part to realize that they were going about the wrong endeavor instead of concluding that they went about the right endeavor the wrong way. I just don’t see this decision causing that. I could be overly cynical when it comes to Oracle’s top level management, but it’s difficult not to be.

  14. Having followed this on Groklaw, I’m quietly confident that Judge Alsup will get the API SSO thing right. He’s asking questions that are highly relevant to writing a watertight ruling on the issue.

    Google’s legal team showed some moments of real class – including, a few days ago, responding to an Oracle motion solely with a Through The Looking Glass quote. Which, for added effect, was quoted from the preface of a book written by Sun and presented as evidence by Oracle. It doesn’t often get better than that.

    I question the value of patents overall, but the harm caused by them in traditional engineering fields is nowhere near that in software. Interestingly however, if the patent office actually applied normal patenting rules properly – ie. novel, non-obvious, and useful – then software patents would not be granted in any case. The only reason a specific rule against software patents is needed is because the USPTO has not done it’s job effectively in the first place.

  15. >If they can find a way to try again, they will. The pot of gold at the end of the proverbial legal rainbow is just too big. That’s what makes me sick about patents, it’s not about protecting your innovations, it’s about legally picking the pockets of people that succeed with something similar.

    Hate not being able to say you’re wrong. The spirit of the patents is to protect and foment innovation, and they are structured so that improvements beat prior art. Or the law was made so in the beginning, I’m not particularly aware of the present state.

    Now, even if patent law is being subverted, I do agree they’ve suffered a heavy blow in this round. I hope they pick up the remains of the mess, choose a productive path and move on.

  16. Amen, Chromatix. The basic rule of patenting is that it is supposed to be non-obvious to someone skilled in the art. I have been bit by patents in the hardware world where A, B, and C are all obvious. A+B, A+C, and B+C are also all obvious. But whoa! No one skilled in the arts would ever have thought to make A+B+C! Patent!

    I know the USPTO is swamped and I sympathize. However, allowing patents on things like naturally occurring genes, ideas without prototypes, and stupid crap like “one click checkout” are opening the floodgates that are drowning the patent office.

  17. @Jeff Read
    “That’s why Windows and Exchange are irreplaceable in corporate deployments. It’s why a good chunk of the global economy runs on Excel.”

    You are confusing success with quality. First to market can lock in retailers and support personnel, to the exclusion of better and cheaper competitors. Or would you like to defend Windows 98/2000/XP/Vista as better desktop OS’ than, say, Mac OS?

    Why Java was chosen for Android? Around the time Android was designed every CS student learned Java. And there was a huge body of support code and libraries available for just this thing, including GUI, Web, and Sandboxing. Need more justification?

  18. @Jeff Read
    Here is a report of a study how an “oligopoly” in the retail chain can prevent competition on quality (repost):

    Study explains how retailers stop Linux from entering the market
    http://www.h-online.com/open/news/item/Study-explains-how-retailers-stop-Linux-from-entering-the-market-1564385.html

    According to ESOP, the configuration of the retail channel for laptop computers imposes a firewall that is very hard to breach for new companies trying to sell innovative products. This is due to “a disproportionate importance of branding and marketing among retailers, which may prevent suppliers from delivering the best products at the lowest price.”

    The same mechanism is now blocking MS WinPhone in the smartphone market. Except that WinPhone is not even on parity with the competition.

  19. Jeff,

    >That’s why Windows and Exchange are irreplaceable in corporate deployments.

    Actually I am more or less actively looking into replacing them once I get in a position somewhere where it will be my decision. Their advantage is that their different products are very well integrated with each other, FLOSS does not offer a “stack” where there is a direct relationship between the database server and the IDE or the CMS (Sharepoint) and the ERP software etc. The individual FLOSS products are good enough, it is the integration that is generally missing.

    But I am trying not to use this integration much precisely to keep licence costs and vendor lock-in low. I have successfully migrated ERP reports to SQL queries ran by PowerShell Scripts sent through SMTP and normal SMTP authentication through Exchange. In this stack the Exchange could be replaced, the database server could be replaced, and given that PowerShell is essentially a Perl .NET (a very good one, I must say, closures and all that), it is replaceable by Ruby.

    Making the big jump is hard but slowly a corporation can get closer.

    (Open Source has excellent web frameworks but generally we need Sharepoint. In Microsoft it is Sharepoint where everything comes together, ERP, CRM, Excel, intranet, web apps. On top of one of the good frameworks, Rails or Django we need a general Sharepoint-like thing that is a good CMS, a good webshop, a good intranet, a good document management system, a good client framework for any kind of CRUD operations so we can write clients and reports on this basis for ERP, CRM systems, a good spreadsheet integration etc. )

    Of course there is less motivation now for the big jump as Microsoft became a whole lot saner from a programming point of view. Back then where the options offered were Visual Basic, C++ and a horrible Windows API, programmers justly hated that. But now that they embraced functional programming and copied all the best ideas from Java, I must say, the .NET framework is well thought-out, LINQ is great, scripting with functional programming in mind in PowerShell is great, ASP.NET MVC is not ideal but not so bad, they embraced jQuery, on the whole the whole thing is OK.

  20. Jeff,

    > I can bang out a new, basic Android app in an hour or two, easy.

    The question is, do we have to? The general trend was moving from desktop development to web development. Now move back to “desktop” on the mobile? Why not just web apps that load a more finger-friendly CSS when they sense a mobile client and that would be all? The web is bad for precisely that thing that mobiles too tend to be bad for: heavy-duty data entry. For everything else, like games, for example there are more and more 3D games running in Chrome. Should not that be the way forward on the mobile, too?

    Generally speaking, the realization of both the FLOSS world and the pirate world is that software or information is not suitable for being a packaged product sold as a per-package price. Shrinkwrap must die, not only as a delivery method but also as a business philosophy. So more or less obviously, to make money on software is to provide it as a service. And it generally means a web app. What do you think?

  21. Dan> *The notion that you can legally outlaw the thought-product of a human mind…..utter evil.*

    Hmm. Unfair to patents – a principle guiding patent law in the C18th was to get people to publish their inventions and end the practice of inventions being trade secrets. Licensed, well-documented ideas are freer than secrets.

    What I consider evil are:

    – poorly documented patents and patents with vague scope
    – the application of patents to standards and APIs

    Which AFAICT covers practically all software patents outside of control systems.

    (first attempt to use markup on the new-look ESR blog, let’s see if it works)

  22. I don’t like the current trend of using “web technologies” for serious applications at all. JavaScript is a deeply horrible language and HTML should be strictly about displaying things.

    Android doubtless used Java – which has no technical relationship to JavaScript – for precisely that reason. Java gives you a degree of hardware independence (same app package can run on a new CPU architecture if such a change happens in future, eg. 64-bit ARM) while offering better proven performance than JavaScript (which has only made big improvements in speed relatively recently compared to Android’s existence). It also makes writing a *high quality* application much easier than a JS/HTML combination.

    And if you need maximum performance, it is still possible to insert as much or as little native code into Android apps as you need. You just have to take account of all the quirks that go with it.

  23. Pingback: Losing big to (potentially) win small « Quotulatiousness

  24. @Chromatix
    Thank you for pointing out that the Native Development Kit from Android allows you to add native code to Android apps. I read this entire thread waiting for someone to point out that fact. That so few people use the NDK is part and parcel of why Android went the VM route. Writing native code across multiple device architectures is more challenging than writing for a single VM and for most apps the performance difference does not matter enough to make the extra effort worthwhile.

    I suspect the reason to go with Java was a combination of the popularity of the language at the time Android was conceived and the availability of a large and familiar standard library in the Apache Harmony project.

  25. I might well ask this question: why exactly did Android go with Java for their core app language? Objective C then Java? There are so many better choices out there.

    Frankly, because of hardware independence. Android now runs as a first-class citizen on x86, ARM, and MIPS. It wasn’t as clear 7 years ago that ARM was going to take over the world, and it’s unclear now. The fact that 99% of Android .apk’s will just run on any CPU architecture that Android is ported to is pretty great. What’s Apple going to do if they have to switch to Intel if they start blowing ARM out of the water in terms of performance/watt at that scale?

    The .NET CLR and C# (via Mono) might seem like a better choice today, but that wasn’t always the case. Java, at the time, was the way to do this sort of thing. Frankly, I’d love to see more languages competently ported to Dalvik and supported as first-class citizens for Android development.

    And one can always develop using the NDK in C++ or whatever. But you lose the platform independence. With Google TV on x86, Intel making big pushes to release a smartphone using Atom, and MIPS potentially making inroads in emerging markets, this is a risky proposition.

  26. To all those grousing here about patents: I have a evil, hideous plan. It’s the sort of idea that makes me wish I had a volcano-based lair, army of faceless minions, and white Persian cat to go with the mad cackling that describing it requires. Other folks can get a more polite laugh at the “that’s a beautiful dream” part, because it’s about as plausible as the volcano and minions.
    Programmers, as a profession, have the tools to kill software patents dead—at least in the US; in fact, it would be as simple as funding a group of Lisp hackers to implement patented software functions. You might have to avoid some parts of the language (LOOP, for sure, and maybe conditions) but Lisp syntax and functions are derived (visibly and directly) from the formal lambda calculus—after all, for this project you want to use only functions with a known, visible representation in Church’s typed lambda calculus (or which are direct calls to the host hardware / OS). Since the lambda calculus was first described in 1930s and formalized by 1940—before ENIAC or any other general purpose computing hardware was built— it is unarguably “pure math”, which the Supreme Court has ruled cannot be patented. Therefore, by using a programming language with a clear one-to-one relationship with the lambda calculus (and formal mathematics itself), we thereby prove any functions implemented within it to be “pure math” as well.
    Seriously, I know this isn’t practical for all patents. Just try to envision the minimum amount of code required to demonstrate the Eolas “browser plug-in” patent in Lisp, or the length of “proof” required to show a formal lambda calculus representation of DEFMACRO, or either SETQ / SETF. Still, it’s a nice daydream….

  27. Alex K. said: “To all those grousing here about patents: I have a evil, hideous plan….”

    The funny thing is, the Lambda Calculus isn’t the only pure math system. Alan Turing’s machine is also pure math–you can’t get more impractical than an infinite tape!–and all modern-day microprocessors are based on this pure math abstraction.

    Indeed, I wrote up a “theorem” a couple of years ago, using the Patent Office’s criteria of patentability, that I still need to polish, that basically proves that you can run Linux, or any bit of software, without infringing on patents. All you have to do is run the software on an emulated machine–and because that emulated machine is pure data expressed purely as electrical signals, it is not patentable, nor can it infringe on any patent.

    Now that we have finite element analysis that can emulate even physical things, from guns to cars to planes to bridges to buildings to mountains, we can run all sorts of simulations to get a feel for what would happen to an object when the trigger is pulled, or when it collides into a wall, or when it is flying with a heavy load, or even when it is shaken in an earthquake…and this, in turn, makes the claim “but physical objects are so difficult to design, so must be protected” even more of a farce than it originally was.

    If you have a great idea, you had also better have excellent business acumen, wonderful networking and customer support skills, and a zest for searching out, and selling to potential customers. If you don’t have these things, it’s ridiculous that patents grant the “right” to sue those who *do* have these things…and if you think that suing someone who “stole” your idea (and who may very well have “stolen” it by coming up with it themselves), thereby guaranteeing multi-million dollars in legal fees, alienating competitors that may also be viable partners, and perhaps even alienating potential customers themselves (particularly those that may be implementing “your” idea, but may realize that it may be better to outsource the resources needed to implement and maintain it to a specialist…such as you yourself)–all because you think your idea *might* make money, *if* you don’t have competition–if you do this, then the best that can be said of you, is that you have questional business acumen.

  28. @Alex K

    Programmers, as a profession, have the tools to kill software patents dead—at least in the US; in fact, it would be as simple as funding a group of Lisp hackers to implement patented software functions.

    Here is a list of articles by PolR on Groklaw (appearing from 2009-2011) explaining this procedure in the most meticulous detail for legal types:

    An Explanation of Computation Theory for Lawyers
    http://www.groklaw.net/article.php?story=20091111151305785

    An Open Response to the USPTO — Physical Aspects of Mathematics
    http://www.groklaw.net/article.php?story=2010092621054289

    Why Software is Abstract, by PolR
    http://www.groklaw.net/article.php?story=20101007030644178

    1 + 1 (pat. pending) — Mathematics, Software and Free Speech
    http://www.groklaw.net/article.php?story=20110426051819346

    A Simpler Explanation of Why Software is Mathematics by PoIR
    http://www.groklaw.net/article.php?story=20110908075658894

    Software Is Mathematics – The Need for Due Diligence, by PolR
    http://www.groklaw.net/article.php?story=20111005102810176

  29. > funding a group of Lisp hackers

    I would suggest funding a group of INTERCAL or brainfsck hackers instead. The intellectual property holders will have a hard time searching for patent violations in their code.

  30. Alex K,

    Programmers, as a profession, have the tools to kill software patents dead—at least in the US; in fact, it would be as simple as funding a group of Lisp hackers to implement patented software functions.

    IANAL but no, this won’t kill software patents. Software patents exist because the existing patent law is permissive and/or vague. It’s not like lawyers haven’t considered that software is just mathematical algorithms. The hack that’s used is to claim a computer running the software as a novel, and therefore patentable, “machine”. The justification for this probably comes from the Diamond v. Diehr decision, which established that a generic mold press, controlled by a generic computer which timed the opening of the press according to the well-known Arrhenius equation, was a novel and therefore patentable invention. In general, it appears that an algorithm when applied to controlling a physical process is considered patentable; an algorithm executed merely for shits and giggles is not. What constitutes a physical enough process? The toggling of bits in RAM? The motion of the heads across a disk? The illumination of the display? All that is left open and vague, giving companies ample opportunity to sue.

    Again, if you don’t like it, write your Congressman. Under the Constitution Congress has the power to clarify the law right quick by passing a bill explicitly making software unpatentable. Anything short of that, and the courts will have to fall back on existing precedent and established interpretation of the laws.

  31. @Alex K.: A few technical remarks on your evil plan:

    1. All Turing-complete languages are in some sense equivalent, but they’re only extensionally equivalent: you can use them to write all the same functions, but not necessarily all the same algorithms. You can’t formalize the concept of an algorithm without some reference to the device (abstract or otherwise) which implements it. In other words, you can write “sort” in any Turing-complete language, but you can’t necessarily write “quicksort”. So, if someone patents the concept of sorting a list, you can offer up a lambda-calculus sort function as a rebuttal. But if they patent “method and apparatus for sorting a list”, where their “apparatus” is a PC and their “method” is a C program, then nothing that you can write in the lambda calculus is necessarily a faithful translation of their idea.

    2. I don’t know why you mentioned the typed lambda calculus, because typed calculi (if the type system is sound and type-checking is decidable) are not Turing-complete. The class of functions that can be implemented in the simply-typed lambda calculus are those which can be proven total in Peano arithmetic. The class of functions that can be implemented in System F (aka the polymorphic lambda calculus) are those which can be proven total in second-order arithmetic.

    3. You really needn’t mention the lambda calculus at all, because Turing machines were formalized in 1936, the same year as the untyped lambda calculus.

    4. Turing machines map pretty well onto physical reality (cf. the “Church-Turing Thesis”), which largely obviates the objections of my first point.

    5. Writing a compiler that targets a Turing machine (or for that matter, the lambda calculus) is less complicated than writing one that targets real, physical hardware (you have fewer quirks to deal with). So, your team of Lisp hackers isn’t needed; they can be replaced with a compiler that takes the patent troll’s invention and translates it into pure mathematics automatically.

  32. @Daniel Franke
    Turing Complete == Recursive function == Lambda
    Every algorithm can by definition be performed by every Turing Complete device.

  33. Winter, every recursive function can be computed by every Turing-Complete device. “Recursive function” and “recursive algorithm” are not synonymous. Functions are defined extensionally, with reference only to their inputs and outputs. Algorithms are defined intensionally, with reference to each step involved in carrying them out.

  34. >I don’t know why you mentioned the typed lambda calculus

    Read up on the Curry-Howard equivalence. “A proof is a program, the formula it proves is a type for the program”. The equivalence specifically refers to typed lambda calculi.

    PoIR is dreaming, though. His plan would accomplish nothing, because (a) it’s not the kind of argument courts and judges are equipped to understand, and (b) the category of “mathematics” in IP law is an invention of lawyers who do not necessarily expect it to exactly correspond to what a mathematician thinks of as mathematics.

    If point (b) makes your head hurt, remember the old saw about the law and sausage.

  35. Eric, I’m perfectly familiar with Curry-Howard, but I’m not sure what point you’re making. What I think you might be saying is that Curry-Howard, by mapping programs to proofs and types to theorems, is the bridge between computation and mathematics. If this is what you mean, I don’t see that bridge as being necessary. I consider any ruled-based system of symbolic manipulation to be “mathematics”, and this describes untyped calculi just as well as it describes typed ones.

  36. >Eric, I’m perfectly familiar with Curry-Howard, but I’m not sure what point you’re making.

    Actually I was surprised when it momentarily appeared that you weren’t. My only point was that whoever brought up specifically typed (as opposed to untyped) lambda calculi was probably thinking of Curry-Howard. This did not seem like the sort of implication you would miss.

    >I don’t see that bridge as being necessary. I consider any ruled-based system of symbolic manipulation to be “mathematics”,

    While I recognize there’s a formalist case for this position, I disagree on Wittgensteinian grounds – I think your definition tries to pull the term “mathematics” so far from the folk understanding of that term that you’re merely isolating yourself. But my objections are not dispositive here; the real issues are elsewhere.

    First, you’re inappropriately projecting your assumptions on the person you were replying to, who may well have principled grounds for believing that the Curry-Howard isomorphism is the right bridge to use in a legal argument. In fact, that is what I deduced his position to be, and I remain surprised that you didn’t immediately do likewise.

    Secondly, and much more importantly, I judge your chances of persuading a court or legislature to buy your definition of mathematics are so slim that by comparison an argument based on Curry-Howard looks like a sure winner – and I don’t think its chances are worth a plugged nickel.

  37. And indeed, the Oracle/Google case demonstrated the limits of courts’ technical understanding, at least so far as we can assume it.

    One of the key points of contention was whether a symbolic reference was “inside” an instruction – when, if you looked at the diagrams put up by both sides, you could clearly see that you had to chase 2-3 pointers from the instruction (which contained only an index into a table) just to get to the symbol string to look up. Perfectly obvious in an instant to anyone with any sort of technical training (ie. 99.9% of people who read this blog).

    Yet the jury asked about half a dozen questions about that specific point, after the lawyers and expert witnesses had spent about two days of argument on it, demonstrating totally opposite viewpoints on this very simple and factual point.

    It turned out that the questions were raised primarily by the jury foreman, who was the one juror who did not immediately or at least quickly understand what was going on at the technical level – even the judge had clearly figured it out, though he felt he was not allowed to say so explicitly. But because the court required a unanimous decision, and the foreman held rather a firm opinion, the deliberations dragged on for days. The foreman eventually decided that since all the other jurors were so firm in their opinions against his own, he could safely say “not proven” and thus obtain a usable verdict.

    And you want to teach these sorts of people lambda calculus and the principles of formal mathematical proofs before they go away and deliberate. As Eric says, not a snowball’s.

  38. Secondly, and much more importantly, I judge your chances of persuading a court or legislature to buy your definition of mathematics are so slim that by comparison an argument based on Curry-Howard looks like a sure winner – and I don’t think its chances are worth a plugged nickel.

    I actually agree with you here: both these arguments are losers. But so too, I think, is any other judicial argument that software patents are categorically invalid. I do disagree with your philosophical claim, so let me take an idealistic digression to address that before I circle back to legal realities.

    While I recognize there’s a formalist case for this position, I disagree on Wittgensteinian grounds – I think your definition tries to pull the term “mathematics” so far from the folk understanding of that term that you’re merely isolating yourself.

    What does your Wittgensteinian argument say about the meaning of the word “hacker”? Your rejection of my definition of mathematics seems quite at odds with what you’ve written in the past about the meaning of words:

    for technical jargon and slang, you consider the purposes and behaviors of the originating speech communities to be normative. Geometers own the meaning of the term “trapezoid”, surfers own the meaning of the term “hang ten”, and people setting themselves in opposition to these meanings, whether deliberately or by mistake, are simply screwing up no matter how popular the erroneous usage may become elsewhere.

    Surely, then, mathematicians own the definition of mathematics. I think my formalist position puts me comfortably in the majority among mathematicians, and many of the alternative schools of thought are even further removed from the vernacular than my own. I grant that it could take me a while to explain to my Starbucks barista why my definition of mathematics ought to be accepted, but I would not have nearly as daunting a task as would an intuitionist who sought to explain why Heyting’s logic should be considered valid, while classical logic should not.

    Now, I take off my philosophy hat and return to legal realities.

    I actually don’t consider this:

    the category of “mathematics” in IP law is an invention of lawyers who do not necessarily expect it to exactly correspond to what a mathematician thinks of as mathematics.

    …to be head-explodey at all. Legal terminology resides in its own namespace, and this is only especially problematic if you don’t realize it (or refuse to).

    I hate software patents. I hate all patents. But, I simply cannot make any intellectually honest argument that all software patents should be deemed invalid under current statute and common-law precedent. So, what follows is not an argument for perfection, but is at least an argument for sanity.

    Insofar as the definition of mathematics is disputed, those disputes are moot, because its definition needn’t be a fundamental tenant of patent law. What is a fundamental tenant is that you cannot patent things are purely abstract. Things that are mathematical are often purely abstract and vice versa, but insofar as a thing is one and not the other, it is the abstractness of it that is of concern.

    Computers are not abstract. They are tangible objects. Therefore, a means of using a computer to perform a given task is an appropriate subject matter for a patent.

    However, subject matter is not the only test we use to determine the validity of a patent. It must also pass an obviousness test. The education of an ordinary practitioner of software engineering routinely includes the study of theoretical computer science, which provides him an abstract mathematical model which can be adapted to describe the operation of any software program. The means by which a large class of mathematical functions — abstract things — may be translated into a software program is obvious to such a practitioner, and so is the reverse translation. Therefore, any patent which begins from an idea that indisputably abstract and mathematical, and then claims nothing more than its translation into software running on commodity hardware, is not valid under the obviousness test. Any valid patent on software must include in all its claims a specific use for that software which does not obviously follow from a simple mathematical description of the algorithm that the software implements.

    Hence:

    Patent A: “A recursive function which assigns to each vertex of a directed graph a real value ranging from 0 to 1, computed as a weighted sum of the values assigned to the vertices which connect to it, beginning from certain designated anchor vertices”.

    Not patentable — fails the subject matter test. This is purely abstract.

    Patent B: “Method of computing the aforementioned function by implementing it as software running on a PC”.

    Not patentable — passes the subject matter test, but fails the obviousness test, because an ordinary practitioner of software engineering could read a mathematical specification of the function and immediately think of implementing it in this manner.

    Patent C: “Method of ordering internet search results by using the aforementioned function to determine their relevance and reputability, treating URLs as vertices and hyperlinks as edges”.

    Patentable.

    I would prefer to live in the world where C is not patentable, but I think B is the one worth fighting over.

  39. >What does your Wittgensteinian argument say about the meaning of the word “hacker”?

    Yup, I suspected you’d be on the ball enough to bring that up. :-) Which is why I already had my answer queued.

    The cases are different because it’s a big stretch in the minds of most non-mathematicians to include (say) a game of sprouts or Nym or Eleusis in mathematics, all of which are “mathematics” in your super-inclusive sense. In fact any deterministic abstract strategy game would qualify. So would the art of laying mosaic tiles in the Alhambra.

    These examples are intended to illustrate part of the problem with your definition of “mathematics”; it actually pushes further outward than the owning experts (which arguably include me, actually) want to go. It’s underconstrained: mathematics, as experts understand it, is only about some kinds of formal systems, and the boundary around “some” is historical and contingent. There are nearby things (like abstract strategy games or Alhambra tilings) that we recognize as kin to mathematics and subject to mathematical analysis without being mathematics.

    The correct, owned-by-experts sense of “hacker”, is, on the other hand, is within the recognition vocabulary of most people who use it incorrectly. Yes, I have encountered exceptions, but they’re rare – the corrective explanation is short and doesn’t make the listener’s brain hurt. Now try explaining where the boundaries of your definition of “mathematics” are without making a non-mathematician’s head explode.

    The truth is that even most mathematicians would tune you out. It takes an active interest in mathematical philosophy to find this controversy interesting.

  40. @esr

    PoIR is dreaming, though. His plan would accomplish nothing, because (a) it’s not the kind of argument courts and judges are equipped to understand, and (b) the category of “mathematics” in IP law is an invention of lawyers who do not necessarily expect it to exactly correspond to what a mathematician thinks of as mathematics.

    PolR has two main gripes with the legal treatment of software patents he tries to correct:
    1) Courts make factual errors about the nature and use of software
    2) Courts sue terminology of arts in ways that are counter to the way the arts use them

    ad 1: Examples are
    – Courts relate lines of codes to movements of electrons and states of transistors. There is no such relation, as any hardware emulation would show.
    – Courts separate code and data, which is wrong, as they show when they treat a postscript document as data.

    ad 2: Examples are
    – The courts came up with their own definitions of “algorithm”, which are not only completely different from what mathematicians and cs call an algorithm, but are also logically inconsistent
    – The same with definitions of “symbolic”

    Wrt ad 2. Compare that to a situations where the courts would come up with legal definitions of “death”, “poison”, and “malignancy” that were contrary to medical science and would pronounce living people dead, dead people alive, dying people healthy, and healthy people dying. Courts do not do such things, because they will listen to experts.

    According to research by PolR, in not a single of the “landmark” legal cases, a Mathematician or CS expert testified, or was even heard.

  41. @ESR, Daniel, et. al. who have jumped on the argument of the “typed lambda calculus”:
    You are taking my “ha-ha-only-serious” suggestion WAY seriously. Look at the preface I included again. If you want to have the serious discussion of the idea, let me step back the formalism in my presentation.

    Lawyers seem to use a definition of “mathematics” which hinges upon “numbers [algebra], shapes [geometry], and formal proofs”. Worse, the qualifiers of what makes “formal mathematics” seems to hinge solely upon the appearance of certain “keywords” in the name, those used to describe the math courses in high schools: “algebra”, “geometry”, “trigonometry”, “calculus”, etc. Under this definition, “boolean algebra” is math, but “set theory” (despite formal equivalences) is not; the “lambda calculus” is clearly math, but a “Turing machine” is a prototype for a mechanical device.

    Because the law is currently using a flawed definition, we must find a means to make the correspondence between software and math as ridiculously transparent as possible. Something that when you write out both and display them side-by-side, you can see an exact 1-to-1 relationship between the formal mathematical proofs and the software design. [Stepping back into the formalism: This was the primary deciding factor in saying "typed lambda" and "Lisp" in my original argument. No matter what other flaws this plan may contain, it can succeed only if you construct an argument that brooks no misunderstanding. If there is a better pairing of mathematics and software that appear, identical, I am unaware of it.]

    So the basic argument could be viewed thus: this formal proof of the definition of a “function” is the foundation of our work. It existed before computers did, so it falls under your silly numbers-and-shapes definition for what can be called “mathematics”. Furthermore, we have worked out a proof which ties each and every line of our code back to these definitions. Even if the common layman cannot follow the very long (and frankly, arcane) proofs that are required, the relationship should be transparent because every nuance, even to the syntax of our code, has been decided by this relationship. Therefore, what we have done in software falls entirely within your definition of “mathematics”, and cannot be covered by a patent.

    Like I said originally, “It’s a nice daydream….”

  42. Alex K.,

    Again, the government’s definition of mathematics isn’t the issue here. U.S. courts all the way up to the Supreme Court have ruled that if pure mathematics forms a component of a process that produces a tangible, useful result, that process is patentable.

    Barring an act of Congress, software patents aren’t going away. Software will remain patentable.

  43. @Jeff Read
    Bur the software is not patented. Only the physical part according to scotus.

  44. @Jeff and @Winter:
    I’m not going to directly link to them, as your job may require you to avoid reading one or the other of these, but please consider for a moment the eHarmony match-making patent or Amazon one-click patent.

    In either case, what exactly was being patented? Neither patent really has a “physical” element, and in each case the “process” portion of the patent is strictly software. Is eHarmony patenting their measurement methods, or a basic mathematical algorithm? Did Amazon patent a particular business process for processing online sales orders, or the particular appearance of the customer interface?

    Other comments here (or at PatentlyO) show that lawyers are quite willing to argue that the revitalized and narrowed Bilski “machine-or-transformation” test can be satisfied by juggling electrons in a general purpose computer. This is a merely pedantic word-distortion, and I propose that the best (only?) way to fight this is with a new, affirmative defense argument: the short and clean argument demonstrating for all non-mathematicians the software-math equivalence.

    Yes, it’s unreasonable. Yes, it’s unworkable. Yes, it’s unnecessary (to the extent Bilski is already poised to kill the worst patents). At the same time, it’s also the only method we can be sure the horror movie monster won’t rise back up for one last fright….

  45. Generally speaking, the realization of both the FLOSS world and the pirate world is that software or information is not suitable for being a packaged product sold as a per-package price. Shrinkwrap must die, not only as a delivery method but also as a business philosophy. So more or less obviously, to make money on software is to provide it as a service. And it generally means a web app. What do you think?

    Even if SaaS is how software companies think they can spin straw into gold nowadays, it hardly means that mobile-platform apps — or the need for them — will disappear. You can get strictly more performance out of a native game than out of a WebGL game, and game developers will want to close that gap in order to get fancier games on more devices.

    Plus phones are coming kitted out with an ever-increasing number of sensors and gewgaws attached, which the browser may not support or lock out for security purposes. The only way to support these is through coding directly to the mobile platform. The street finds its own uses for things; if you give ordinary hackers a powerful Unix machine they can carry in their pockets, they will figure out never-before-thought-of ways to use its capabilities.

  46. Bur the software is not patented. Only the physical part according to scotus.

    As I mentioned, most if not all software patents use the hack that the invention being patented is a computer running the software, not the software itself. So you are not precluded from doing, say, LZW or marching cubes with pencil and paper, but any computer that runs such an algorithm is infringing, thus prohibiting any useful use of the algorithm.

  47. @Jeff:
    Okay, you’ve got me. The problem has nothing to do with definitions of words. The problem doesn’t have to do with any particular patent, company, law, or case. The problem really has to do with establishing legal precedent that will (a) block the patent office from granting patents that can be implemented entirely in software and (b) provide a cheap, and straightforward defence for existing software patents.

    I proposed a (satirical!) method which you clearly object to as being off target. What is your proposed solution?

  48. I proposed a (satirical!) method which you clearly object to as being off target. What is your proposed solution?

    An act of Congress.

  49. I’ve got one. Imagine this conversation on the witness stand:

    Q: The plaintiff admits that algorithms per se are not patentable, true?

    A: True.

    Q: The patent claims all talk about creating a unique machine by combining a general-purpose computer with the various claimed algorithms, true?

    A: True.

    Q: Which specific general-purpose computer did you have in mind when drafting the patent?

    There are several possible answers to this question, all of which lead, in different ways, to the desired outcome. For example, let’s start with a truthful answer:

    A: The algorithm is coded in the ANSI C89 language; therefore any computer implementing the ANSI C89 language would be suitable for such a transformation.

    Q: The ANSI C89 language is extremely common, is it not?

    A: It is.

    Q: So the class of machines potentially covered by the patent would be very large – indeed, excluding only very small, extremely old or very obscure computers to which nobody has ported an ANSI C89 compiler.

    A: Yes. In particular the claims cover the computer system that the defendant implemented the claimed algorithm on.

    Q: But to a person ordinarily skilled in the art of writing algorithms, would it not be an obvious further step to encode his algorithm in the ANSI C89 language?

    A: …

    Q: And, once so encoded, would it not be an obvious further step to compile and run the algorithm on a computer implementing that language?

    A: …

    Obviously, one could s/ANSI C89/any widespread high-level language/g.

    Once the above conversation has occurred a couple of times and led to patent rejections, witnesses might decide to be more specific:

    A: We selected a specific model of Dell Precision workstation as the demonstration device for the patent.

    Q: When and by whom was this determination made?

    A: It happened to be the lead engineer’s workstation at the time the patent was filed, so the choice was ultimately made by our IT Procurement Department.

    Q: Please outline the detailed specifications of this workstation.

    A: Intel Pentium 4 HT at 2.8GHz, 1GB DDR SDRAM, 250GB hard disk manufactured by Maxtor.

    Q: Would a potential licensee be able to easily obtain such a workstation?

    A: Maybe on eBay. They suffered a high rate of failure though due to bad capacitors.

    Q: I take that as a “no”. Did the defendant combine the claimed algorithm with precisely that type of machine?

    A: No.

    No further questions, Your Honour.

  50. Jeff Read, you know you are not serious with your repetition of the “Act of Congress” response. Congress is not going to amend the Patent Act. There are sufficient lobbying interests fronting the patent trolls as well as various large corporations owning patent portfolios that appear on the balance sheet as assets that there would be no chance of any legislation altering the patent statutes from being adopted. Relatively small alterations in the procedural aspects of the Patent office were difficult enough to get through Congress.

    The problem really isn’t one of amending statutes, the problem has always been of two parts – a poorly administered patent examination process in the software subject matters and a Federal Circuit with a ludicrous definition of “obviousness”.

  51. > a Federal Circuit with a ludicrous definition of “obviousness”.

    Nothing is likely to be obvious to a jury, and very few things are likely to be obvious to a judge.

    Judges go through a process where they are repeatedly selected for political correctness before they get to be a judge.. To be really really really politically correct, you have to sincerely believe in a lot of things that are stupid, impossible, or mutually contradictory – observe our host’s entirely inconsistent, incoherent, and mutually contradictory beliefs about race, intelligence, heredity, and so forth, and esr is no way politically correct enough to be a judge. To be a judge requires about one thousand times as much self induced stupidity as esr displays, and it is a lot easier to accomplish this if you start with a large amount of natural stupidity, before you try to make yourself artificially stupid with self induced stupidity.

    This problem is illustrated by the recent shenanigans in Thomas Jefferson High School for Science and Technology in Alexandria. They recently changed their intake criteria to rely heavily on student information sheets, teacher recommendations and student essays, which student essays everyone knows need to be pious declarations of how left wing you are, and the teacher recommendations and student information sheets are to check that you really are that left wing and are not just blowing pious smoke.

    If political correctness and intelligence are independently distributed, then hyperexponential decay implies that increasing the required political correctness should not result in much of a decline in intelligence. If instead of taking in the smartest one percent, you take in those that are in the smartest ten percent and at the same time in the most left wing ten percent, that would be a small, barely noticeable decline in intelligence, easily accommodated by a subtle dumbing down in the course work, that no one could really prove.

    Instead, however, there was a quite radical and disturbing dumbing down, which suggests that the smartest ten percent are seldom to be found among the most politically correct ten percent.

    Reading the writings of the elite of the period 1870-1910, it seems pretty obvious to me that the elite of that period was, contrary to Murray’s argument, one hell of a lot smarter than the elite of our era, that while our elite is still smarter than the man in the street, the difference is diminishing rapidly.

    So, patents are going to be enforced by people to whom nothing is obvious, thus you can patent just about anything, and people do.

  52. In Europe the discussion uses a ttype of test where anything that can theoretically be executed entirely by a person with pencil and paper, in principle, cannot be patented.

    But the European patent office is an independed bureau run entirely by lawyers with effectively no oversight nor accountability.

  53. Patent C: “Method of ordering internet search results by using the aforementioned function to determine their relevance and reputability, treating URLs as vertices and hyperlinks as edges”.

    Patentable.

    I would prefer to live in the world where C is not patentable, but I think B is the one worth fighting over.

    IMHO it really should be (if at all; I think software patents should be abolished in its entirety)

    Patent C': “Method of ordering internet search results by using the aforementioned function to determine their relevance and reputability, treating URLs as vertices and hyperlinks as edges, where the weights / coefficients / constants are determined empirically”.

    It is important to distinguish between patenting results of man-hours of hard work of R&D, and aha! discovery.

  54. Here’s something to think about when considering what you can demonstrate to be ‘obvious’ to a jury of twelve nonprogrammers. This is Alan Kay in his “Early History of Smalltalk”:

    “..in the Spring of ’74 after I taught Smalltalk to 20 PARC nonprogrammer adults. They were able to get through the initial material faster than the children, but just as it looked like an overwhelming success was at hand, they started to crash on problems that didn’t look to me to be much harder than the ones they had just been doing well on. One of them was a project thought up by one of the adults, which was a little database system that could act like a card file or rolodex. They couldn’t even come close to programming it. I was very surprised because I ‘knew’ that such a project was well below the mythical ‘two pages’ for end-users we were working within. That night I wrote it out, and the next day I showed all of them how to do it. Still, none of them were able to do it by themselves. Later, I sat in the room pondering the board from my talk. Finally, I counted the number of nonobvious ideas in this little program. They came to 17. And some of them were like the arch in building design; very hard to discover, if you don’t already know them.”

  55. Jeff Read, you know you are not serious with your repetition of the “Act of Congress” response. Congress is not going to amend the Patent Act.

    No, I am deadly serious. The Supreme Court has a tendency to say “That’s for Congress to decide, not us” rather than radically overturn an interpretation of the law that has considerable precedent behind it. (Unless the law in question is unconstitutional.)

    However, I’m also well aware that Congress is going to do fuckall about the problem.

    What I’m saying is that rather than bitch about it, software developers should get used to the patentability of software, and lawyer up as necessary. Nothing is really going to change in the USA, at least.

  56. @Charles Stewart
    >Hmm. Unfair to patents – a principle guiding patent law in the C18th was to get people to publish their inventions and end the practice of inventions being trade secrets. Licensed, well-documented ideas are freer than secrets.

    Yes, indeed, however, that really isn’t the case today at all is it? There is almost never anything revelatory in a patent. In fact, if you can plow through the turgid legalese the best you will find is some handwavy, over broad claims. I you have ever dealt with patent lawyers and heard the explain what things like “non-obvious” means, you would laugh in derision. It is a classic case of people who can’t actually do anything themselves, criticizing people who make the world go round. (Soak the rich indeed, whether rich in money or innovative energy.)

    Physical things can easily be reverse engineered, perhaps the only exception would be manufacturing processes that are kept hidden away in a secret factory.

    However, the patent system comes from a really depressing poverty mindset — that the human mind is so limited that it can only come up with one way to, for example, manufacture a chemical. I think that exactly the opposite is true. When open and free to act without the tripwire of patents, any process can be replicated (results wise) without the need to peek inside the secret manuals of a corporation.

    Patents, on the other hand, allow the secret manual corporation to sit on its hands on not improve anything competing on the basis of lawsuits rather than innovation. I assure you, when you are relying on lawyers more than innovators we are all in trouble.

    I have said it before, and I’ll say it again, the only reason patents don’t totally destroy our economy is because they are implemented by the grinding, brutal inefficiency of the courts and the patent office. Someone gets taken down, but all legally viable cases are not executed, because if they were, the economy would grind to a halt. When someone dares introduce a little free market capitalism into this brutal system they get called “patent trolls” and derided as if the whole thing isn’t one big lumbering patent troll.

    Let me give you one specific example. 3D printing has the potential to totally transform the world we live in. When such devices can be made to create plastic parts with built in simple electronics, perhaps with a drop in CPU module, the manufacturing world would be as totally transformed as the laser printer has transformed the publishing world. My uncle explained how he typed his college thesis on a typewriter. I can’t imagine how that is even possible.

    I’d love to get involved in a start up making these things, and have some great ideas to really produce some world changing products. But here is the reality of 3D printing — it is an absolute patent minefield. There are so many random patents that trying to negotiate through the nightmare would literally be impossible for me. Consequently, I won’t work in that field. What true innovator whats to spend their life plowing though thousands of pages of illiterate, turgid legalese just to see of the government will allow them to innovate? And what innovator wants toe spend ever ounce of energy bringing a life changing product to market only to be capriciously raped by some patent troll? Whether that patent troll be in business only to enforce patents, or be some huge mega corporation that has legal departments pouring out random patents. (Looking at you here Apple.)

    Patents suck the life out of small companies. They are a disaster for the economy. I say, get rid of them all. Every one. Right now. No preparation necessary. I can’t even begin to imagine how much richer we would all be today had that been done twenty years ago.

  57. For the record, Jessica, I am starting to believe, as you do, that patents do more harm than good and should be abolished or at least greatly reduced in scope.

    But I don’t think anything less than becoming a founding member of Rapture will do anything to get us close to that ideal.

  58. Anyone who has a patent and wants to make money has to be a troll. All a patent really is is a license to sue. If you don’t sue, you get ripped off. If you’re not rich and you do sue, you’ll get ripped off anyway by the bigger fish.

    The rich get richer….

  59. @Jessica
    I do not think you will find much opposition here. There are some problems with the blanket abbolition of patents, like there are for copyrights. But it is doable.

    But nothing can save the US from a dysfunctional legal system.

  60. @Winter
    > There are some problems with the blanket abbolition of patents,

    Yes, you are right, but there are vastly more with not abolishing all patents. All of life is a choice, and, from what I see, this is an easy one.

    > But nothing can save the US from a dysfunctional legal system.

    You are mostly right, however, like I say, a creaking painful legal system does have the advantage of very high transaction costs to some kinds of stupid lawsuits. Much like congressional gridlock is usually better than one party control, notwithstanding the desperate need for corrective legislation.

    I notice you qualified you comment as “the US legal system”. Does that mean that the Dutch legal system works much better?

  61. @Jessica
    Depends on what you consider better.

    However it is more efficient and bankrupting by frivolous suits is almost absent. You get a result in months. SCO was silenced in Germany within two weeks. And loser pays costs (within reason).

  62. >You are mostly right, however, like I say, a creaking painful legal system does have the advantage of very high transaction costs to some kinds of stupid lawsuits.

    The problem is that in certain cases (like Microsoft or Apple against some tiny startup) high transaction costs are actually desirable for the party bringing the suit: They can bring a lawsuit that they know they’ll lose and be certain that their opponent will be bankrupt (or have settled on their terms) before any ruling is made.

  63. > The problem is that in certain cases (like Microsoft or Apple
    > against some tiny startup) high transaction costs are actually
    > desirable for the party bringing the suit:

    That happens sometimes for sure, though if the case is meritorious there are lots of contingency lawyers who might be interested in those fat wallets.
    However, what happens far more often is the reverse: grandma sues big company for $40,000 for a slip and fall. It is cheaper to settle with grandma than go to court.
    Nonetheless, you are right, justice is fairly low on the totem pole of priorities there.

  64. @Jessica
    “That happens sometimes for sure, though if the case is meritorious there are lots of contingency lawyers who might be interested in those fat wallets.”

    Only the exceptions get in the news. The statistics seem to say that the wealthier party will win. Most of the time, Grandma just breaks her hip and cannot get it repaired. Oh, and if the big company wins, it just places a notice that you can slip and the problem is solved.

    And contingency lawyers work both ways. I would like to use the example of SCO.

  65. Judge Alsup has issued his order denying Oracle’s motions for judgment as a matter of law for the patent infringements that the jury found for Google upon.

    He has some very choice words for describing Oracle’s expert’s testimony on the topic of the key claim of the ‘104 patent regarding symbolic references that are amusing to read. His order does well in my opinion to stifle the chances of a successful appeal on that one.

  66. @Winter

    >But the European patent office is an independed bureau run entirely by lawyers with effectively no oversight nor accountability.

    Needs a little editing:

    But the European patent office is an independed bureau run entirely by lawyers with effectively no oversight nor accountability.

  67. @Jessica
    >The statistics seem to say that the wealthier party will win.

    Which statistics, and can you demonstrate the causality? You might be right, but to be honest, I think the legal system screws everyone. Unevenly, perhaps.

    > Most of the time, Grandma just breaks her hip and cannot get it repaired.

    I’ve been on the pointy end of a lawsuit. The lawyers’ mantra is “settle, settle, settle.” In the US court system it costs north if $50,000 just to get to summary judgement. Any amount less than that the prudent thing is to settle (unless you want to go the “set an example” route.)

    > It just places a notice that you can slip and the problem is solved.

    I don’t think that is generally true. There are certainly a lot of warning labels that make some attempt to prevent this thing, but it is quite common for the looser to have to make significant changes as part of the settlement. And FWIW, there might even be some legitimacy to that.

  68. @Jessica
    “I don’t think that is generally true.”

    I was specifically thinking about the warnings on paper cups with boiling hot beverages. The (Very) small print tells me spilling boiling water on me could be harmful.

    The correct response is that paper cups are not safe containers for boiling water.

  69. I definitely agree on the warning-notice versus correct-design approach. The problem is that it is cheaper to provide disposable paper cups (of increasingly elaborate design in some cases) rather than reusable ceramic mugs which would inevitably get stolen and broken. That’s a sad reflection of modern society.

    However, the infamous hot-coffee lawsuit was, apparently, because the coffee was in fact boiling hot instead of at the lower temperature specified by the franchise. FWIW, coffee is ideally brewed at about 85°C, but there are various ways to cool it further before serving – not least by adding milk.

    I just read a report detailing an incident (in the UK) where a passenger got their hand stuck in a train door as it was departing. As evidence that piles and piles of notices are useless, this passenger had clearly ignored the signs plastered all over the doors (inside and outside) warning passengers not to enter or leave the train while the doors were closing. Likewise the warning noises before the doors do start to close – she apparently thought the noises were coming from the train on the opposite platform, and continued walking past a set of doors while they were still open (despite humans generally having stereo hearing for a reason).

    The official response is thankfully measured – with the report noting that door entrapment is a fairly rare problem, and resulting fatalities are extremely rare – on the order of one per *decade*. A notice has been circulated reminding drivers of the need to stop *immediately* if the passenger communication alarm is operated while leaving a station, and training materials have been updated accordingly. Also, during a refurbishment scheduled for next year, the design of the door seals will be reviewed to try and make it easier to free a trapped object from between closed doors (given that said object is small enough, eg. fingers, to not prevent the doors from closing). And finally, the arrangements for platform staff (whose duty it is to inspect the train between door closure and departure) are to be modified to increase the thoroughness of their inspection.

    All of this is effectively enforcing regulations that already exist, regulations that recognise that members of the public are even less infallible as humans than trained railway staff.

  70. Winter, the silly warnings come from product liability lawsuits where the “defect” of the product being alleged is a failure to warn of a hazardous possibility.

  71. For Tim F’s edification, the fourth line of the Judge’s Summary is a restatement of the doctrine of merger. The doctrine I had mentioned in an earlier thread on this topic.

  72. Florian Muller failed every “prediction”. I would feel pity for the guy if i wasn’t sure the guy is utterly dishonest!

  73. @SPQR
    > Winter, the silly warnings come from product liability lawsuits where the “defect” of the product being alleged is a failure to warn of a hazardous possibility.

    Silly warnings are actually quite dangerous, counter intuitively. If a product is buried in warnings of stupidity, real and important warnings are hidden.

    For example, with many statin drugs they have a dangerous reaction with grapefruit juice. This is hardly obvious, and a warning that needs to be clearly made. However, if that warning is number 17 among the 30 others including “Don’t stick the pill up your nose” and “Don’t feed a whole bottle of these to your kids”, then most people don’t get the message.

    Actually reminds me a lot of legal contracts. So many words bristling with legal bla, bla, bla. Whereas the meat of the contract is buried and it is hell to dig it out.

  74. Jessica Boxer on Saturday, May 26 2012 at 12:52 pm said:
    > … I’d love to get involved in a start up making these things …
    “Lanie, I’m going to print more printers. Lots more printers. One for everyone. That’s worth going to jail for. That’s worth anything.”
    http://craphound.com/overclocked/Cory_Doctorow_-_Overclocked_-_Printcrime.html
    Read the whole thing. Maybe not “Nightfall”, but a great example of a short story, in addition to a great premise and a great message.

    P.S. Does the new template break the automagic FF spell-checking?

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