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Patent Absurdity/English

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Questions and notes

(Between square brackets: time codes + text written on the video, but transcribed as it will have to be translated for ST in other languages; (?) marks passages to be checked --Calmansi 10:02, 17 April 2010 (UTC))

Great work! (ST = subtitles; got it) Ciaran 22:27, 17 April 2010 (UTC)
Thanks, Ciaran. Must we stick to FOSS tools for subtitling too? No problem for me for this first transcript with just rough time-coding indications we are presently doing: I always excerpt the audio from videos and transcribe it in the labels of Audacity (I presume this private use does not violate the ND clause of the film's license), squinting on the video for other indications.
But what about the time-coding of each subtitle? Google/YouTube voice recognition may not yet be up to scratch for autocaptioning, but it works well for time-coding an unmarked transcript into captions: that's how e.g. I got the English captions in "Lessig at Educause 2009: CC for science and education" http://www.youtube.com/watch?v=8c8anxJMuRU . I.e. I uploaded the video, and added to it a .txt file with the corresponding part of the transcript of the whole talk in http://cc4dice.wikispaces.com/Lessig_Educause , and the Google voice recognition did the slicing and time-coding to produce the captions. But it is not a FOSS application, so must we exclude it? Same question about DotSUB.com, which is very handy for translating original captions into other languages. --Calmansi 08:24, 18 April 2010 (UTC)
We have to stick to free software, and I don't know what software is available, but my understanding it that the folk at FSF will work on it. If you/we/others can do the subtitling (with free software), that would be great, but we can leave it to FSF if necessary. Ciaran 10:58, 18 April 2010 (UTC)
We probably have to do it by hand. I already did a few parts, not that much left. --anon
Wow, that's great, thanks: I hate time-coding each frigging caption by hand - been there... --Calmansi 23:09, 18 April 2010 (UTC)
As for the time-coding, you can probably use my work below. I think it's quite accurate, but professional subtitlers might have some objections as to the length of some subtitles. Also, as I tried to get an accurate transcript, some rows are quite lenghty. In other words it's not to be considered an english CC, but rather a work to build other translations from and getting the time-codings for free. --Martin Karlsson

Does anyone know what a "true op" or a "threw up" in a bill is? (00:35)

true-up → reconciliation? --Echarp 16:02, 18 April 2010 (UTC)
rather a detailed assessment based on a list of checking points: "At the end of the budget period the company will review your actual usage. You will then receive a bill for an amount that may be higher or lower than your budget amount. This is called a “true-up” or settlement. The true-up makes sure that what you paid on the budget plan matches what you actually used during the budget period. You may either receive a credit if you paid too much during the budget period, or have to pay the difference if you did not pay enough during the budget period." (From http://www.puco.ohio.gov/PUCO/Consumer/Information.cfm?id=6284)--Calmansi 23:45, 18 April 2010 (UTC).

What is budget billing?

Most natural gas and electric utilities offer budget billing (also known as “balanced” or “levelized” payment plans), which moves a portion of the consumer’s winter payments to non-heating months when gas bills are typically lower. Programs may differ slightly but follow six basic steps:
  • Your gas usage and costs are estimated for a set period, typically a year.
  • This estimate is then divided by the number of months in the budget period.
  • You pay a set amount for service for each month of the budget period.
  • Depending on market conditions, utilities may make a mid-term adjustment to your budget billing amount to help mitigate any future charges for underpayment.
From: http://www.in.gov/iurc/2498.htm --anon 03:21, 19 April 2010 (UTC)

The term "trolls" used bellow is referring to "patent trolls". See the Wikipedia page: [1]. --anon 20:21, 18 April 2010 (UTC)

Transcript in .srt subtitle format

Here is a transcript of the spoken dialogue in .srt (SubRip) subtitle format. It should be easier for anyone wanting to create an actual subtitle file to edit this one, for instance with Gnome Subtitles (it's possible to open .ogv files with it too). Please note that the on-screen-text regarding changes to the Patent Act is not in the transcript, look at the transcript below for that. Also, there can be some mistakes since english isn't my native tongue, double check with transcript below if in doubt.

Following the suggestion on the Subtitles front page, I've relicensed it under: Creative Commons BY 3.0. You DO NOT have to credit this work to me in any way. I would have released it in Public Domain if possible, but since Public Domain isn't applicable in Sweden I doubt I can do that.

Contact details: Should you have any questions or suggestions don't hesitate to contact me on martin810907 (at) gmail (dot) com

/ Martin Karlsson 213.80.109.159 20:59, 20 April 2010 (UTC)

Download link: English transcript of spoken dialogue (.srt format)

I checked it and it seems good, should we "merge" the timecoding from the .srt file to here?
It's important to point out that I didn't make the subtitle file from the transcript below, so there will be some differences. Although, I think that having the .srt file as a starting point and then merging the two will make for a transcript which better suits the actual format subtitles need to be. It's broken down into sizable sentences. I started out very close to the spoken dialog but eventually started taking out some "you know" and such, since it's A LOT of dialog and very speedy cuts between scenes I felt it had to go. Otherwise the subtitles would have had to change more frequently and you wouldn't have had time reading them. /Martin 213.80.109.159 20:19, 19 April 2010 (UTC)
I've made a number of small corrections in the .srt file, so it better reflect the transcript below. For those translating from the srt file directly, there shouldn't be any cause for translation errors except for what Timothy B. Lee says at 15:29, where my transcript said "patents" instead of "patent lawyers". /Martin 213.80.109.159 22:37, 20 April 2010 (UTC)

Maybe a good start for sub title to transcription interoperability, is to use the .srt format in this transcription page. I did that for French transcription, and it seems to work great (minus the encoding problems...). Note, each "frame" is not numbered for simplicity, which means you can just change the timecode format and have the same data as here.

You would need to change from [10:01 - 12:21] at the beginning of each item, to 0:10:01,0 --> 0:12:21,999 before each item... From there on it would ease things with the time coding issues --Echarp 15:31, 21 April 2010 (UTC)

But are we sure .srt is the format that will be used in the end? There are other ones. Besides, changing "from [10:01 - 12:21] at the beginning of each item, to 0:10:01,0 --> 0:12:21,999 before each item..." is not enough to transform the present transcript into an .srt one: you would still have to number each subtitle as well to get an .srt file. --Calmansi 08:35, 25 April 2010 (UTC)
I don't think having the entire subtitle syntax in the transcript is a good idea. It makes it harder to read and translate. I think it would be better to separate the actual transcript from the subtitle format and syntax. However, as for what format is going to be used in the end, it's just a matter of opening the .srt file in Gnome Subtitles and saving it in another format. I see no harm in using .srt in the meanwhile, if for no other reasons than to have the correct time codings in there as well. -- Martin 213.80.109.159 09:26, 25 April 2010 (UTC)
Martin, I agree with you on the importance of having time codings in the transcript too. But as I pointed out above, .srt also entails numbering each subtitle. This means that if at some point subtitles are divided or merged, deleted or added, all the following subtitles will have to be renumbered. As the time codings stand now - e.g. [0:02 - 0:06] - they can easily be changed into the time-coding expressions for any subtitling format, once we have final versions of all subtitle sets. And rounded seconds are usually sufficient.
One more thing: would it not make more sense to have this discussion about .srt on http://en.swpat.org/wiki/Patently_Absurd/Subtitles, i.e. the main coordination page? --Calmansi 10:51, 25 April 2010 (UTC)
That's what I meant, really. Separating transcript and subtitle format, so that the transcript below is left as it is and then you can create the .srt file from that. There's of course some work involved in doing that, but for translators it's easier to not have to read the subtitle format. The problem is that time codings need to be more precise and the length of text needs to be changed to fit the individual subtitles. So it's no easy conversion, but for translating I still believe it's the best option. --Martin 213.80.109.159 09:26, 26 April 2010 (UTC)

October 2010 copyright question

With regard to the English transcript of spoken dialogue (.srt format), it is stated that "You DO NOT have to credit this work to me in any way." When reusing the content of the .srt file, would it be necessary to credit any others as copyright holders go? (According to ESP:Copyrights, the copyright on the wiki text contributions are assigned to End Software Patents, but this may not apply to a file that is externally hosted.) -- Elegie 16:06, 23 October 2010 (EDT)
(I added a title so that this doesn't get lost; to readers: this is still part of the above discussion.)
The CC-BY licence does have some requirements about attribution. He says he doesn't want any attribution. For everyone else, the wiki provides attribution via the history page. But if someone wants to distribute a copy of this page's content, do they have to include a list of the contributors? That's a good question. If we use CC-BY 3.0, then here's the licence text. It looks like a list of contributor's names might be necessary, but I'm not too familiar with the CC licences so I'll have to read it again. Insights welcome. Ciaran 18:07, 23 October 2010 (EDT)
(I just remembered that Wikipedia is under CC-BY, so they must encounter the same question when it comes to printing their articles. We could see what solution they've come up with. Ciaran 17:58, 24 October 2010 (EDT))
For the text of Wikipedia articles, under the terms of use for Wikimedia projects, it may be possible to satisfy the licensing requirements by including a hyperlink (if possible) or a URL for the Wikipedia page(s) that are being reused, and by specifying the usage of the CC BY-SA license. This is not totally clear. (Does this apply when Wikipedia content is distributed on a CD-ROM or DVD-ROM?) From experience, when a user edits a Wikipedia article, it is specified that "You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license." (Note: From what is said, some Wikipedia articles are dual-licensed under the GFDL and CC BY-SA, though there are other Wikipedia articles that are only licensed under CC BY-SA. From what one remembers, Wikimedia licensing is a special case because there was a licensing transition from the GFDL to CC BY-SA.) The information about licensing for mirrors and forks of the Wikipedia project may also be relevant. -- Elegie 00:31, 29 October 2010 (EDT)

The transcript

[0:02 - 0:06] [Washington D.C. November 9, 2009]

[0:09- 0:15] [These people are lined up to hear the oral arguments in the first software patent case to be brought before the supreme court in almost 30 years]

[0:14 - 0:16] Journalist: You guys just want to introduce yourself and spell your names?

[0:15 - 0:17] Journalist: your names and spelling and titles and all the good stuff (?)?

[0:17 - 0:21] Bilski: I'm Bernie Bilski, B I L S K I

[0:23 - 0:30] Warsaw: Rand, R A N D, Warsaw, W A R S A W

[0:31 - 0:32] Journalist: Will you guys tell us in a nutshell what you invented?

[0:33 - 0:36] Rand: The invention is a guaranteed energy bill

[0:36 - 0:38] which is like a budget bill without a true-up [pension benefit],

[0:39 - 0:42] and it's a method of hedging both sides in the transaction.

[0:43 - 0:45] So behind giving consumers -- energy consumers --

[0:46 - 0:49] a guaranteed energy bill, there's a lot of mechanics,

[0:50 - 0:52] and the mechanics involve financial transactions

[0:53 - 0:56] between energy consumption or any energy consumers

[0:57 - 0:58] and the energy providers.

[0:59 - 1:03] [These men hope to gain a patent on a business method of hedging commodity risk]

[1:03 - 1:07] Rand: And that's what the invention is in a nutshell. It's a method of generating guaranteed bills for consumers and also protecting energy company earnings.

[1:13 - 1:16] [The outcome of the case will have profound implications for software]

[1:17 - 1:19] Dan Ravicher (Public Patent Foundation): The Bilski case itself is, someone applied for a patent on

[1:20 - 1:24] a business method or software, and the patent office rejected it.

[1:25 - 1:27] And now this is that person suing the patent office, saying:

[1:28 - 1:29] "You have to grant me that patent".

[1:30 - 1:33] This case is about what does it mean to be a patentable "process".

[1:34 - 1:37] And so, since software patents fall into the category of processes --

[1:38 - 1:40] because they're not the machine, and not a composition of matter,

[1:41 - 1:43] which are some of the other categories of things that are patentable --

[1:44 - 1:46] this case will define what it means to be a patentable process.

[1:47 - 1:53] [Patent absurdity - how software patents broke the system...]

[1:52 - 1:54] Journalist: What about Justice Roberts? He said, you know, basically your patent involves

[1:55 - 1:57] people picking up the phone and calling other people.

[1:57 - 1:58] J. Michael Jakes (Attorney for Bilski): It could be reduced to that level

[1:59 - 2:00] as to certain acts that are performed,

[2:01 - 2:02] but it's much more than that.

[2:03 - 2:05] It has to do with selling a commodity at a fixed price, to one party,

[2:06 - 2:09] selling to a different party at a different fixed price,

[2:10 - 2:11] identifying counter-risk positions.

[2:12 - 2:13] When you look at claim four in the patent --

[2:14 - 2:17] we have a thing called claims which describe really what the invention is --

[2:18 - 2:19] there's a long mathematical formula in there --

[2:20 - 2:23] that didn't exist in nature or anywhere in the literature -

[2:24 - 2:28] that these very inventive folks came up with.

[2:28 - 2:29] Ben Klemens - author, 'Math You Can't Use': Once upon a time, Math was not patentable, and now it is.

[2:30 - 2:32] And we can have someone like Bilski coming in and saying:

[2:33 - 2:36] "Yes, you know, I worked hard on this mathematical equation

[2:37 - 2:41] and therefore I should have a patent on this information processing method here."

[2:42 - 2:45] Journalist: You mentioned in your claim that there is a very long calculation showing that

[2:45 - 2:46] Jakes: There is.

[2:46 - 2:50] Journalist: Do you think a strong calculation or good Math is a basis for a sof- for a patent?

[2:50 - 2:51] Jakes: It can be.

[2:51 - 3:02] Ben Klemens: The basic process of writing software is, you take a broad algorithm of some sort, some means of doing something with abstract data, and then you apply variable names.

[3:02 - 5:07] Ben Klemens: So for our first derivation, let's start with just a simple matrix, a matrix of values. We find the mean of each column: Mu 1, Mu 2, Mu 3. And we're gonna define Y to be X minus X - I'm sorry: X minus Mu for each column. Now, if we have some other factor X, we can take X dot S and find the projection of X onto this space. This is called the singular value decomposition. Now, here is the trick, here is the great part. Now let's say inst... let's say this first row, X1 equals "sexuality". Let's say X2 equals "Do you own cats"? And X3 equals, I don't know, "affectionateness". Ok, so now, we'll also say that, let's take a vector J1 equals Jane, Jane's responses on this survey. Let's say J2 equals Joe's responses. Now let's do the same projection as we did before. We're going to take X dot S - we're going to take J1 dot S. We're going to take -- subtract that from J2 dot S. We're going to find the distance between these two points, and we're going to call that "compatibility". And in that simple step, we have derived patent number 6,735,568. The trick, the trick of our derivation was that before -- with the singular value decomposition -- we had abstract numbers. What the guys at eHarmony did to get this patent was to assign names to our variables. So instead of an abstract X1, we have "sexuality". Instead of an abstract X2, we have "a preference for cats". And by making those assignments, by setting variable names in this manner, they were able to take an abstract concept and turn it into a patentable device.

[5:07 - 5:46] Ben Klemens: What we want to do, according to the heads of our patent institutions, is take mathematics and slice it up into as many slices as possible and hand those slices out and say, well if you do a principal component analysis, if you multiply matrices for, uh, for dating sites, well ok, we give that to eHarmony. If it's for equities we'll give that to State Street. And so on and so forth. And uh, what we're giving out is basically exclusive rights to use mathematics, to use a law of nature, in whatever context. And what we're getting in return is basically nothing.

[5:46 - 5:48] [How did we get to this point?]

[5:47 - 5:52] Mark Webbink - Central for Patent Innovations: A patent a is government grant, and in the U.S. it rises out of the constitution.

[5:53 -6:08] Dan Ravicher: The Framers included a provision for granting exclusive rights to inventors in our constitution. The belief was that that was important in order to reward people who had made technological advances that would benefit society.

[6:09 - 6:12] [Patent Act - Federal Hall - April 10, 1790, An act to promote the progress of useful Arts]

[6:12 - 6:20] Webbink - New York Law School: The rights that are granted are not the rights to do the thing that they invented, but the right to exclude others from doing that thing.

[6:20 - 6:35] Eben Moglen - Software Freedom Law Center: So the idea was, you have a machine or a thing, which is not previously described in any literature, and which no skilled mechanic could figure out how to make, given what is described in the literature, and for that you get a patent.

[6:35 - 6:45] Webbink: The basis for determining what is patentable subject matter has continued to evolve over the last 200 years of our national existence.

[6:46 - 6:56] Moglen: In 1953 the Patent Act was modified by Congress to add the words "or processes" to the word "product" in describing what could be patented.

[6:56 - 6:58] [Patent Act - Federal Hall - April 10, 1790: An Act to promote the progress of useful Arts.]

[6:58 - 7:04] [Patent Act amendment - Capitol Building - July 19, 1952: Along with 'machine', 'manufacture' or 'composition of matter', a 'process' is included as patentable statutory subject matter.]

[7:04 - 7:18] The Congress which did that was plainly thinking about processes of industrial manufacture. Processes that produced something at the other end. Float glass on molten tin and it will become flat or whatever.

[7:19 - 7:35] Webbink: And it's unlikely that anybody thought of "process" at that time in terms of computer software because we didn't have applications on computer software for many years after that last revision of the Patent Act.

[7:36 - 7:37] [Patent Act amendment - Capitol Building - July 19, 1952: Along with 'machine', 'manufacture' or 'composition of matter', a 'process' is included as patentable statutory subject matter.]

[7:37 - 7:47] [Gottschalk v. Benson - Supreme Court - 1972: Respondents' method for hexadecimal conversion merely a series of mathematical calculations or mental steps does not constitute a patentable "process" within the meaning of the Patent Act]

[7:45 - 7:53] Dan Bricklin - the first PC spreadsheet: Back in the late 70s, the patent law was interpreted such that you couldn't patent software. It was considered mathematical algorithm or law of nature.

[7:53 - 7:54] [Gottschalk v. Benson - Supreme Court - 1972: Respondents' method for hexadecimal conversion merely a series of mathematical calculations or mental steps does not constitute a patentable "process" within the meaning of the Patent Act]

[7:55 - 8:01] [Parker v. Flook - Supreme Court - June 22, 1978: A mathematical algorithm is not patentable if its application is not novel]

[8:01 - 8:10] Dan Bricklin - the first spreadsheet: The legal world changed. The environment was quite different starting with some decisions by the Supreme Court, like Diamond v. Diehr.

[8:11 - 8:36 ] Karen Sandler - Software Freedom Law Center: The patent applicant was coming in with a new process for curing rubber. The temperature and the preciseness of the temperature is essential in curing rubber well, and the innovation that was being patented in this case was an algorithm to monitor a thermometer that was basically in the process and determined when the rubber needed to be released, and cooled.

[8:37 - 8:47] Richard Stallman - Free Software Foundation: And they said processes for curing rubber are patentable, there's nothing new about that. The fact that they use a computer in implementing it shouldn't change anything.

[8:47 - 8:48] [Parker v. Flook - Supreme Court - June 22, 1978: A mathematical algorithm is not patentable if its application is not novel]

[8:48 - 8:55] [Diamond v. Diehr - Supreme Court - March 3, 1981: The working of a machine is patentable, whether it is controlled by a human or a computer]

[8:56 - 9:17] Mishi Choudhary - Software Freedom Law Center: The Supreme Court makes it clear that you cannot patent software because it is only a set of instructions or algorithm and abstract laws of nature, algorithms aren't patentable in the U.S. itself. And, however, then there was the creation of the Court of Appeals for the Federal Circuit.

[9:17 - 9:52] Moglen: The problem being solved, in some sense, begins with the fact that trial court judges always hate patent cases. And the reason trial court judges hate patent cases is for a single trial judge -- a lawyer who has spent his or her life doing litigation -- a patent case in which she or he is going to be required to find detailed facts, about how paint is made or how computers work or how radio broadcasting operates, is an opportunity just to be made into a fool.

[9:53 - 9:54] [Diamond v. Diehr - Supreme Court - March 3, 1981: The working of a machine is patentable, whether it is controlled by a human or a computer]

[9:54 - 10:00] [Creation of US Court of Appeals - Federal Circuit - April 2, 1982: Creation of the US Court of Appeals for the Federal Circuit]

[9:59 - 11:04] Moglen: Congress is attempting to change the system in which patent cases are litigated. But instead of changing who tried patent cases, Congress left the non-specialist district judge in charge of the trial. And then created a new Court of Appeals called the Federal Circuit, whose job it was to hear all appeals from patent cases. Rapidly of course this court filled up with patent lawyers. And the patent lawyers then made the law in the Court of Appeals that applied to all those district judges who where still making non-specialist decisions of which they were afraid. Naturally the Federal Circuit turned out to be a place which loved patents. And its chief judge Giles Rich, who lived to be very, very old and died in his late nineties, was a man who particularly loved patents on everything. The Federal Circuit court under Giles Rich sort of broke Diamond against Diehr loose from its original meaning and came to the conclusion that software itself could be patented.

[11:05 - 11:09] Choudhary: The Supreme Court left basically everything to this court to decide.

[11:09 - 11:19] Ravicher: The PTO actually used to reject patents on software, like in early 1990's. And they did not allow them, and the applicants would appeal those rejections to the Federal Circuit.

[11:19 - 11:20] [Creation of US Court of Appeals - Federal Circuit - April 2, 1982: Creation of the US Court of Appeals for the Federal Circuit]

[11:20 - 11:27] [In re Alappat - Federal Circuit - July 29, 1994: Installing software on a computer makes a "new machine", which is patentable]

[11:28 - 11:35] [In re Lowry - Federal Circuit - August 26, 1994: The data structure of a computer's hard drive constitutes a "machine" that is eligible for patentability]

[11:36 - 11:42] [State Street v. Signature Financial - Federal Circuit - July 23, 1998: A numerical calculation that produces a "useful, concrete and tangible result", such as a price, is patent-eligible]

[11:43 - 12:18] Moglen: In the world of machines, you show the patent office THE machine, and you got a patent office whose claims were "I claim this machine". In the world of computer software, there was no way of defining what the unit was. I don't claim a program, I claim a technique that any number of programs doing any number of things could possibly use. The consequence of which is that very rapidly, we began to build up as real estate, that somebody owned and could exclude other people from, a whole lot of basic techniques in computer programming

[12:19 - 12:40] James Bessen - author, 'Patent Failure': What happened was, starting in the mid 90's, the number of patents on softwares started soaring. And industry attitude started changing too. So you had Microsoft, which originally didn't deal with software patents very much at all. I guess they got sued in the early '90's by Stac and lost a significant judgement against them - they started patenting.

[12:41 - 12:48] Webbink: They were going to have their own sets of patents, so that if a major patent holder threatens them, they can fire back.

[12:49 - 13:00] Bessen: Gradually, companies like Oracle were forced to set up patent departments, just for defensive reasons. They had to patent their stuff, so that they had something to trade with the companies that had patents.

[13:00 - 13:15] Webbink: And so the arsenal started to develop. By the year 2000-2001, Microsoft now holds thousands of software patents. Oracle was probably approaching a thousand software patents, Adobe...

[13:15 - 13:27] Bessen: You know, all of them have become more and more aggressive patenters and some of the ones who were against software patents ended up suing other companies. And so what you had is an explosion of patenting first, and then an explosion of litigation.

[13:32 - 13:52] Bessen (partly over stats graphics): By the late 90's, about a quarter of all patents granted were software patents, About a third of all litigation - patent litigation - involve software patents. About 40% of the cost of litigation is attributed to software patents. And those numbers have been going up.

[13:39 - 13:44] [Percent of patent lawsuits involving software patents]

[13:45 - 13:51] [Probability patent is in a lawsuit within 4 years of issue - \ Software patents All patents - Patent Issue Year]

[13:52 - 15:28] Bessen: So Charles Freeney invented a kiosk that goes in retail stores. And the idea is you come in, you could select a music selection, swipe your credit card, put in a blank 9-track tape - and this is how long ago, this patent was - and it would write that music selection onto the tape, and you could go away with it. The patent was drafted in a very vague language, so there were terms like "point of sale location" and "information manufacturing machine" and Freeny eventually sold this patent to somebody who wanted to interpret those terms very broadly, to basically cover e-commerce. So here was this very limited invention for this kiosk, and he wanted to interpret those terms in such a broad way that it would cover transactions that took place over the internet. And you could - they could be - you could make them in your office, in your bedroom, in your house, anywhere. And so it covered virtually all of e-commerce. The courts, initially, didn't agree with that interpretation, but they appealed it, and the appellate court largely agreed with them, and they were able to extract some settlement of well over a 100 companies. But the significant thing is, here is this patent, you can't tell what its boundaries were until you get to the Appellate Court. What most people thought its boundaries were turned out to be wrong.

[15:29 - 16:05] Timothy B. Lee - Princeton University: One of the key properties of programming language is very, very precise. You can look at any program in any language, any C, python or, any language like this. And you know exactly what it's doing. And you can say, you can look at two pieces of source code, and you can say, you know, are these doing the same thing or different things? And we do this because computers are picky and we need to tell the compute exactly what we need to do in order to accomplish some task. The patent - the language the patent lawyers use is almost the opposite. There is an advantage in being vague and in being broad and being non specific, because the broader your language, the more things you're going to catch in your net.

[16:05 - 16:26] Ravicher: So it is a large problem in our patent system, just defining something, what is the context or the borders of the patent. And, you know, what does it cover, what does it not cover. And that ambiguity causes a lot of chilling effects, because people are going to avoid doing anything that could possibly be covered by the patent, even if in reality, the patent wouldn't cover what they want to do.

[16.27 - 17:45] RMS: Let's imagine that in the 1700s the governments of Europe had decided to "promote" the progress of symphonic music (or as they thought promoted), with a system of musical idea patents, meaning that anyone who could describe a new musical idea in words could get a patent, which would be a monopoly on that idea, and then he could sue anybody else that implemented that idea in a piece of music. So, a rhythmic pattern could be patented or a sequence of chords or a.. a set of instruments to use together or any idea you could describe in words. Now, imagine that it is 1800 and you are Beethoven and you want to write a symphony. You are going to find it's harder to write a symphony that you won't get sued for than write a symphony that sounds good. Because to write a symphony and not get sued, you are going to have to thread your way around thousands of musical idea patents. And if you complained about this, saying this was getting in the way of your creativity, the patent holders would say, "Oh, Beethoven, you are just jealous because we had these ideas before you. Why should you steal our ideas."

[17:46 - 18:10] Ciaran O'Riordan, End Software Patents: People have been making music for thousands of years. There was never any need for patents in the field of music. And since the computer industry has made programming possible, people have been developing software as well, right since its beginning, there was never a need to have patents in this field in order for the activity to happen.

[18:11 - 18:49] Bricklin: Of course everything we were doing, back before 1980, 1981, in those things, patents played no role in it. Cut and paste, the embedded ruler in word processing, word wrapping - a lot of the things that are really important and we take for granted and that are much, much more innovative in many ways than many patents that we have today, because patents can be on some very, very minute - minute things, and that's the way the law works. Those things happened, we had great advances without patents.

[18:50 - 19:17] Robert Tiller - Red Hat: one of the world's most respected computer scientists, Donald Knuth, has said that if software patents had been available in the 1960' and 70's when he was doing his work, that is probably the case that computer science wouldn't be where it is today. There would be blockades on innovation that could seriously have prevented the kinds of technical solutions that we take for granted today.

[19:17 - 19:28] Moglen: The programmer writing a long program might conceivably need to check whether 500 or a 1000 different techniques are patented. Then there is no way that she possibly could.

[19:28 - 19:43] Ravicher: The Patent Office issues hundreds of software patents all the time. Every Tuesday, they issue 3500 patents, and a large number of those relate to software. It's just impossible to review all those patents every week, to make sure you're not doing something that could infringe them.

[19:43 - 20:31] Sandler: So there is a provision in the US patent laws that, basically hold patent infringers at a..., I guess, imposes greater liability if they're shown to willfully infringe. So, basically the idea is that if you knew about a patent, and you infringed on it, you should have a stricter penalty than if you didn't know about them. But what this results in, is this situation where there is a real disincentive to follow what patents have been made, and what new inventions there have been through the patent system. Because, if you read every patent, then - or there's evidence that you have read patents - then you are liable for willful infringement, then you knew about the patent and you infringed it anyway. And the penalty is treble damages.

[20:31 - 20:40] Journalist: If a member of the people who file briefs (? to check) in this court suggested that software should be removed from the scope of patentability. Can you comment on that?

[20:40 - 20.54] Jakes: Yes, well, I obviously disagree with that, and I don't believe that software should ever be removed. It's one of our great resources of technical innovation in this country. And to come up with a test that would somehow eliminate software would, I think, be a disaster for the economy.

[20:55 - 20:57] [Would it though?]

[20:55 - 21:40] James Bessen - author, 'Patent Failure': You know, Mike and I estimate from outside pharmaceuticals and chemicals, the patents sort of are acting like a 10 or a 20% tax. You know, so you can think of that - you know, the small developer is developing something - down the road he'll have to pay that tax. Then, you know, every small company I know in software, as long as they have been around a few years and hit the market, somebody is asserting a patent against them. They're running into some potential difficulties. They feel - very frequently feel obligated to get patents themselves for defensive purposes. So all of that activity is a tax. It's something that's not helping them innovate. It's - you know - an unnecessary activity.

[21:41 - 21:43] [Best practical]

[21:41 - 22:49] Jesse Vincent - Best Practical: The primary thing we do is an issue-tracking system called "RT" or Request Tracker. So it's customers' service, help desk, bug tracking, network operations. Everything where you've got a whole bunch of tasks that you need kept track of, and you need to know what happened, what didn't happen, who did it, who didn't do it, when. It's like a kind of to-do list on steroids, designed for a whole organization. Pretty much everything is Open Source or Free software, under one license or another, We will get consulting customers or support customers, who add indemnification language to our standard contract or need us to sign theirs. And it says that - you know: the standard legalese - it's going to say something like: we indemnify and hold them harmless and agree to pay their legal fees and sacrifice our first-born if something happens and someone discovers that our software is violating a patent, is violating somebody else's patent. It's very very rarely the case that we end up signing something that has that kind of language in it, but it eats up a lot of legal fees.

[22:49 - 23:02] Michael Meurer - author, 'Patent Failure': Look at the innovative people in software, in ICT, and ask: "Would they be better off if the patent system was abolished?" The answer is probably "yes".

[23:03 - 23:37] Bessen: Who's benefiting? Patent lawyers, number 1. Number 2, you have a small number of so-called "trolls" who are benefiting, but it's not clear that even most of them make - are making much money. You see, more recently, in the last 4-5 years, companies like intellectual ventures and hedge funds who are acquiring large volumes of these trash patents and using them to extract hundreds of millions of dollars from companies. They're benefiting, they may be the biggest beneficiaries.

[23:38 - 23:51] Ravicher: You know, there is a lot of bad press in the last few years about the harm that's caused by software patents. And you'd think that's how the political influence on the PTO to get them to slow down their issuing and start rejecting. And that's what resulted in the Bilski case.

[23:52 - 23:59] [In re Bilski - Federal Circuit -October 30, 2008: Inventions must be tied to a particular machine or transform something. "Useful, concrete and tangible result" of State Street is inadequate.]

[24:00 - 25:13] Ravicher: Well, the biggest first bad press story was the Blackberry patents, where all the Congressional representatives have their Blackberries, and there is a company called NTP that sued the manufacturer of Blackberry, saying that all Blackberries infringed its patent. Well, NTP was this company which is just a 1-person holding company. They didn't make any products or services themselves. And so, this got a lot of attention: it was in the Wall Street Journal, in the Washington Post. And Congress persons were really upset that they may lose their Blackberry and they may not be able to communicate efficiently. And so that caused a lot of attention. Then you had all these patents on, like, banking methods and imaging for cheques that those patent holders have been asserting against the banking industry. And the banking industry had a lot of influence on Capitol Hill. So they've been going down there and saying: "Look, these kind of patents are causing us lots of harm". Then you add into that the whole "patent troll" phenomenon in Eastern District of Texas, with small patent holders suing large IT companies, like Google and Microsoft and IBM and Hewlett-Packard. All these companies also have legislative influence. And they've said, you know: "These types of patents are causing real harm to our business. They're costing us jobs, they're increasing the price of products and services that we offer to our customers, and you need to do something about it.

[25:13 - 25:14] [In re Bilski - Federal Circuit -October 30, 2008: Inventions must be tied to a particular machine or transform something. "Useful, concrete and tangible result" of State Street is inadequate.]

[25:14 - 54:20] [Bilski v. Kappos - Supreme Court - 2010: Supreme Court may affirm their previous rejections of software patents, or decline to decide this issue.]

[25:21 - 26:06] Peter Brown - Free Software Foundation: The situation we find ourselves in is that the Lower Court, the Court of Appeal of the Federal Circuit, is essentially a court for patents, for hearing patent cases. And this is the first time that the Supreme Court has taken up that scope of "patentability". And specifically, this test that was implemented by the Lower Court does talk to software patents. And so, there is basically a 20-year history of software patents being granted due to the Lower Court. And so we are hoping that the Supreme Court will clear up the mess that the Lower Courts created and restamp its authority, which basically said that you cannot have software patents.

[26:07 - 26:29] Joe Mullin - IP Law & Business Magazine: When you saw the arguments that were brought by Bilski's lawyer - the patent bar is in some sense an organized lobby, and an expansive subject matter, that's available to be patented, is in their interest. And it's clear that this was frustrating for some of the justices. Some of them were frustrated by how expensive patentable subject matter has become.

[26:29 - 26:34] Journalist: I mean they seem somewhat dismissive of the idea that you could patent this particular idea.

[26:36 - 26:51] Jakes: I think people have a hard time getting over the idea that you can get a patent on hedging commodity risk. But if you actually look at the claims, and look at what's in there, it is a process, and it's no different than any other process. It just may be that it's not the way that they thought of patents in the past.

[26:52 - 27:11] Peter Brown: We're encouraged by the comments by the justices, which showed that they were skeptical, and which suggested that they understood that software is little more than a series of steps that can be written out as mathematical formula, or written out on a piece of paper or as - which was mentioned by one of the justices - typed out on a typewriter.

[27:12 - 27:23] Mullin: Software patents, on a general purpose computer, have never been explicitly endorsed by this Court. And this Court has also shown no compunction about reversing rules that have held for a very long time.

[27:23 - 27:29] (off voice of Mullin ctd): They clearly thought that the petitioners here were trying to get a patent on something very basic, some basic forms of human activity.

[27:29 - 27:35] [More than 200'000 software patents have been granted in the U.S.]

[27:36 - 27:41] [Programmers find it increasingly difficult to write software they won't be liable to be sued for]

[27:42 - 27:46] [Now imagine...]

[27:44 - 27:57] [Beethoven's Vth symphony - from 27:46 with score]

[27:58 - 28:00] [Patent labels on the score for "crescendo" and "group of 3 eight-notes]

[28:00 - 28:04] [Beethoven's Vth symphony with score]

[28:04 - 28:08] [Patent labels on the score for "Piano dynamics" "Quarter rest" "Quarter note in C3"]

[28:08 - 28:14] [Beethoven's Vth symphony with score]

[28:14 - 28:34] [Patent labels on the score for "Sforzando", "Major third", "Tied half-note", "Tremolo", "horn in E-flat"]

[28:35 - 28:42] [Credits: Directed, shot and edited by: Luca Lucarini. Produced by Jamie King. Animations: Christopher Allan Webber. Sound mix: Matt Smith]

[28:43 - 28:48] [Copyright 2010 Luca Lucarini. This film is licensed under a Creative Commons Attribution-No Derivative works 3.0 license (or later version). http://patentabsurdity.com]

[28:49 - 28:54] [Supported by a grant from the Free Software Foundation and made possible by the associate membership of the Free Software Foundation http://www.fsf.org]


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