The people who disfavor government regulation should as a reward have to spend the next years flying economy class on planes with increasingly narrower seats and with less legroom, something that flight passengers are increasingly facing.
Although there should be strict rules -- for the sake of everyone's health and welfare -- that govern seat width and leg room on airplanes, the fact is that passengers are being increasingly crammed into their seats like sardines by the commercial airlines in order to improve their financial bottom line, regardless.
Without proper regulations, the private commercial world really could care less about YOUR flight health or comfort -- that is, unless you are willing to pay a premium.
See Skift, the travel intelligence company at
How to Outsmart the Airlines and Beat the Shrinking Airplane Seat.
Sunday, January 19, 2014
Wednesday, January 15, 2014
Corporate Evasion of Government Regulation in the USA by Switching from Landline Phones to Voice over IP: Net Neutrality and the Law
You read our previous posting, right? If not, you definitely should.
If you read this one, you will better understand our criticism of the decision in Verizon v. FCC of the responsible judges on the DC Circuit Court of Appeals, who apparently are not aware of what is going on in the real world.
At Stop the Cap! Promoting Better Broadband, Fighting Data Caps, Usage-Based Billing, & Other Internet Overcharging Schemes
one can read that already in 2012, AT&T had understood the legal and practical ramifications of the stealth-of-hand "switch" from landline phones to Voice over IP as a quick and clever means to avoid federal regulation under the Telecommunications Act of 1996.
Stop the Cap! put into a nutshell in the year 2012 what the DC Circuit in its opinion of 2014 has difficulty in expressing, namely:
No excuse. These are educated people who should know better.
If you read this one, you will better understand our criticism of the decision in Verizon v. FCC of the responsible judges on the DC Circuit Court of Appeals, who apparently are not aware of what is going on in the real world.
At Stop the Cap! Promoting Better Broadband, Fighting Data Caps, Usage-Based Billing, & Other Internet Overcharging Schemes
one can read that already in 2012, AT&T had understood the legal and practical ramifications of the stealth-of-hand "switch" from landline phones to Voice over IP as a quick and clever means to avoid federal regulation under the Telecommunications Act of 1996.
Stop the Cap! put into a nutshell in the year 2012 what the DC Circuit in its opinion of 2014 has difficulty in expressing, namely:
"Basic landline service is designated a “telecommunications service” by the FCC, which makes it subject to regulator review. Broadband, on the other hand, and anything else using IP, is typically classified as an “information service,” where most oversight regulations do not apply."The DC Circuit judges would like to have the world believe that Verizon v. FCC is a case that turns on a twisted FCC self-imposed and foolishly Supreme Court deferred-to definition of what a "common carrier" is in terms of the law, but in fact, in the real world, there is hardly a difference between what traditionally was called a phone company and what now is a broadband provider via VOIP (Voice Over Internet Protocol) -- as written at the FCC:
"Voice Over Internet Protocol (VoIP)Given the above knowledge, for the courts in a pea-and-shell game now to take the ball and move it onto another field under the guise that there is a significant difference here for purposes of federal government regulation is just nonsense, and makes a mockery of the law.
IP-Enabled Services
Voice over Internet Protocol (VoIP), is a technology that allows you to make voice calls using a broadband Internet connection instead of a regular (or analog) phone line. Some VoIP services may only allow you to call other people using the same service, but others may allow you to call anyone who has a telephone number - including local, long distance, mobile, and international numbers. Also, while some VoIP services only work over your computer or a special VoIP phone, other services allow you to use a traditional phone connected to a VoIP adapter.
Frequently Asked Questions
How VoIP / Internet Voice Works
VoIP services convert your voice into a digital signal that travels over the Internet. If you are calling a regular phone number, the signal is converted to a regular telephone signal before it reaches the destination. VoIP can allow you to make a call directly from a computer, a special VoIP phone, or a traditional phone connected to a special adapter. In addition, wireless "hot spots" in locations such as airports, parks, and cafes allow you to connect to the Internet and may enable you to use VoIP service wirelessly."
No excuse. These are educated people who should know better.
Court in America Trashes Net Neutrality and Opens Internet to Preferential Commercial Use via Faster Connections and Differential Pricing
The Open Internet as a myth of the future?
Will Internet go the way of radio -- where federal deregulation has led to a concentration of U.S. radio stations in the hands of just a few companies?
What is the cause of our concern? It is a case decided January 14, 2014, one of the worst (for the people) U.S. court decisions to come out in recent years
-- one, however, that would probably be affirmed by the predominantly current pro-business majority in the current U.S. Supreme Court (even the intellectual Breyer here is on the wrong side of the equation).
In that just decided case, Verizon v. FCC, the U.S. Court of Appeals for the District of Columbia Circuit has fully trashed the idea of "net neutrality" and a "free and open Internet", by permitting preferential provider treatment of commercial services via faster streaming connections and differential pricing.
This is a very stupid decision because it makes the crux of the holding depend on a "straw man" legal technicality -- discussed in confusing and epic detail and that no layman will understand -- i.e. a determination of whether broadband providers are "common carriers" under the law [a common law legal fiction not employed in Europe and never designed for the Internet], whether those providers are being treated as "per se common carriers" by the FCC even if declared otherwise, and what limitations that brings in terms of regulation.
Providers can now concentrate on the most profitable aspects of their Internet business, the rich companies, companies such as Apple, whose power has become so great that they challenge court authority (only if it is not in their favor). The United States of Apple? These companies will own your souls.
YOU, the consumer, unless you will be willing to pay much higher premium rates in the future, will have to become content with slower Internet service as compared to the "big boys".
Put differently, total commercialisation of the Internet has arrived, which is precisely the opposite of what the Internet originally was intended to do.
Verizon already tried ten years ago to shamelessly expand its monopolistic powers in Verizon v. FCC, 535 U.S. 467 (2002), and now has finally been successful in this case. Too bad for you, John Q. Citizen.
But perhaps it is all part of the trend whereby mega-companies like Facebook now exist mostly just to commercialise the interests of their users for corporate gain.
In the just decided case, Verizon v. FCC, Judge Tatel, who should know better, wrote for the Appeals court [LawPundit has add the bracketed material]:
Crichter in his comment at the New York Times Bits Blog on the article The Nuts and Bolts of Network Neutrality, hits the reality right on the nose in writing:
The logical fallacy in the legal reasoning of the Court is its finding that:
Andrew Raff explains:
Leland E. Beck at Federal Regulations Advisor in FCC “Net Neutrality” Rules Vacated by U.S. Court of Appeals for D.C. Circuit writes:
But the Telecommunications Act of 1996 does not require that conclusion. Rather, in a case that went to the U.S. Supreme Court, as Raff further writes at AndrewRaff.blog:
This is law at its worst. If the "net neutrality" rules can be tossed this easily, then the stupid FCC decision not to treat ISPs as common carriers should be equally tossed. Why judicial deference in one case and not the other???
Worse, there is the chance that the FCC will not even appeal the decision, since the new FCC chairman, Tom Wheeler, is on record (WSJ) as being against regulating broadband Internet the way that landline phone systems are regulated.
We thus have the bizarre situation of the virtual destruction of the Internet as we know it today because of an ill-conceived Court of Appeals decision that stinks to heaven in terms of its unnecessarily convoluted legal analysis on a simple question of Internet regulation, which should have removed the legal fictions and have decided the case by finding Internet service providers to be what they are, common carriers, and thus subject to the regulations that apply to them. What we have now is one legal fiction after the next. Terrible jurisprudence. Terrible.
For more detail and analysis, see:
Gautham Nagesh and Brent Kendall at the Wall Street Journal, Business, in Court Tosses Rules of Road for Internet: Federal Regulations on 'Net Neutrality' Are Voided, Clearing Way for New Fees
Micahel Hiltzik at the Los Angeles Times in Net neutrality is dead. Bow to Comcast and Verizon, your overlords
Edward Wyatt at the New York Times - Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals
Clyde Wayne Crews Jr. at Forbes - Court Rules Against Net Neutrality In Verizon V. FCC
Bits Blog at the New York Times, The Nuts and Bolts of Network Neutrality
Danny Kimball at Antenna, Why Verizon v. FCC Matters for Net Neutrality— and Why It Doesn't writes:
Scott Cleland, Chairman, NetCompetition, Why the 1996 Telecom Act’s Unbundling Model is Obsolete, writes:
Ben Bajarin writes at Time, Techland, Big Picture, in Living in the Last Mile: How to Improve Rural Internet Access:
In closing, take a look at
Betty Isaacson at the Huffington Post,
Why You Should Be Freaking Out About The End Of Net Neutrality
That could be the future of the Internet.
Will Internet go the way of radio -- where federal deregulation has led to a concentration of U.S. radio stations in the hands of just a few companies?
What is the cause of our concern? It is a case decided January 14, 2014, one of the worst (for the people) U.S. court decisions to come out in recent years
-- one, however, that would probably be affirmed by the predominantly current pro-business majority in the current U.S. Supreme Court (even the intellectual Breyer here is on the wrong side of the equation).
In that just decided case, Verizon v. FCC, the U.S. Court of Appeals for the District of Columbia Circuit has fully trashed the idea of "net neutrality" and a "free and open Internet", by permitting preferential provider treatment of commercial services via faster streaming connections and differential pricing.
This is a very stupid decision because it makes the crux of the holding depend on a "straw man" legal technicality -- discussed in confusing and epic detail and that no layman will understand -- i.e. a determination of whether broadband providers are "common carriers" under the law [a common law legal fiction not employed in Europe and never designed for the Internet], whether those providers are being treated as "per se common carriers" by the FCC even if declared otherwise, and what limitations that brings in terms of regulation.
Providers can now concentrate on the most profitable aspects of their Internet business, the rich companies, companies such as Apple, whose power has become so great that they challenge court authority (only if it is not in their favor). The United States of Apple? These companies will own your souls.
YOU, the consumer, unless you will be willing to pay much higher premium rates in the future, will have to become content with slower Internet service as compared to the "big boys".
Put differently, total commercialisation of the Internet has arrived, which is precisely the opposite of what the Internet originally was intended to do.
Verizon already tried ten years ago to shamelessly expand its monopolistic powers in Verizon v. FCC, 535 U.S. 467 (2002), and now has finally been successful in this case. Too bad for you, John Q. Citizen.
But perhaps it is all part of the trend whereby mega-companies like Facebook now exist mostly just to commercialise the interests of their users for corporate gain.
In the just decided case, Verizon v. FCC, Judge Tatel, who should know better, wrote for the Appeals court [LawPundit has add the bracketed material]:
"As we explain in this opinion, the Commission [FCC] has established that section 706 of the Telecommunications Act of 1996 [see text, and NTIA] vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here — that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet — is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order."Here is how the FCC currently (still) describes that Telecommunications Act of 1996 at its website:
"The Telecommunications Act of 1996 is the first major overhaul of telecommunications law in almost 62 years. The goal of this new law is to let anyone enter any communications business -- to let any communications business compete in any market against any other.Well, that is the world of yesteryear. If big companies are to get preferential provider service, the competition can forget it. No chance. Just look at radio.
The Telecommunications Act of 1996 has the potential to change the way we work, live and learn. It will affect telephone service -- local and long distance, cable programming and other video services, broadcast services and services provided to schools.
The Federal Communications Commission has a tremendous role to play in creating fair rules for this new era of competition."
Crichter in his comment at the New York Times Bits Blog on the article The Nuts and Bolts of Network Neutrality, hits the reality right on the nose in writing:
"To state the obvious, individual carriers like Verizon have no interest in free flow of information, or promoting growth in the economy overall, and certainly not in offering equal access to content or services from potential competitors. They are interested in profits, period. Though there is some competition in [b]roadband service, it still does not extend to many rural areas, where telecoms or expensive satellite providers have virtual monopolies. And even in more densely populated areas, the model is more oligopoly than free competition. I hope the FCC can work out ways to prevent cream skimming and discrimination that earns the blessing of the courts. DirectTV is NOT a good model for the internet."We are not against profits. We are against legally created windfall profits, law-based monopolies, and against giving people the golden goose for nothing. Rewarding economies of scale by preferential laws simply leads to larger monopolies, nothing else. Where has the contrary ever happened?
The logical fallacy in the legal reasoning of the Court is its finding that:
"Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order."The Court has thus taken the legal position that FCC anti-discrimination and anti-blocking rules on Internet providers (ISPs) "impose per se common carrier obligations".
Andrew Raff explains:
"In 2002, the FCC ruled that cable modem service is properly classified as an information service rather than cable service or telecommunications service offering and therefore is not subject to common carrier regulation, but merely to regulation under the Commission's ancillary jurisdiction to regulation communications under Title I of the Act. In re: Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities." [emphasis added]The Court is now saying that if broadband provision of Internet is not "a common carrier service", then the FCC can not regulate it as it has been regulating, because it is in fact treating Internet service providers as per se common carriers, which the FCC has declared that they are not.
Leland E. Beck at Federal Regulations Advisor in FCC “Net Neutrality” Rules Vacated by U.S. Court of Appeals for D.C. Circuit writes:
"Although the court of appeals spends considerable time affirming the FCC’s authority to regulate under the 1996 Act, the key lies in the distinctions: the FCC cannot regulate broadband providers as common carriers because the FCC retains its 1980 still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” and the Communications Act expressly provides that “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.” Therefore, the court needed to determine whether the requirements imposed by the FCC’s Open Internet Order subject broadband providers to common carrier treatment.
Even granted the FCC due Chevron deference, the court had “little hesitation” in deciding that the anti-discrimination and anti-blocking obligation classified, in reality, fixed broadband providers as common carriers under the long history of that status."
But the Telecommunications Act of 1996 does not require that conclusion. Rather, in a case that went to the U.S. Supreme Court, as Raff further writes at AndrewRaff.blog:
"The Supreme Court affirmed the Commission's ability to make that regulatory classification in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In a 6-3 opinion delivered by Justice Thomas, the Court overturned the Ninth Circuit and ruled that the Commission acted within the scope of its power to make such a regulatory classification and that the classification should be afforded judicial deference."The Court of Appeals thus held further in the current 2014 Verizon case that the FCC can not rely on ancillary jurisdiction for its net neutrality regulations, so that we have the absolutely absurd situation that the FCC clear up to the Supreme Court was given judicial deference for a far-reaching classification of ISPs as not being common carriers and here is not being given judicial deference for treating them as common carriers nevertheless for purposes of net neutrality, anti-discrimination and anti-blocking. Why the two-faced jurisprudence?
This is law at its worst. If the "net neutrality" rules can be tossed this easily, then the stupid FCC decision not to treat ISPs as common carriers should be equally tossed. Why judicial deference in one case and not the other???
Worse, there is the chance that the FCC will not even appeal the decision, since the new FCC chairman, Tom Wheeler, is on record (WSJ) as being against regulating broadband Internet the way that landline phone systems are regulated.
We thus have the bizarre situation of the virtual destruction of the Internet as we know it today because of an ill-conceived Court of Appeals decision that stinks to heaven in terms of its unnecessarily convoluted legal analysis on a simple question of Internet regulation, which should have removed the legal fictions and have decided the case by finding Internet service providers to be what they are, common carriers, and thus subject to the regulations that apply to them. What we have now is one legal fiction after the next. Terrible jurisprudence. Terrible.
For more detail and analysis, see:
Gautham Nagesh and Brent Kendall at the Wall Street Journal, Business, in Court Tosses Rules of Road for Internet: Federal Regulations on 'Net Neutrality' Are Voided, Clearing Way for New Fees
Micahel Hiltzik at the Los Angeles Times in Net neutrality is dead. Bow to Comcast and Verizon, your overlords
Edward Wyatt at the New York Times - Rebuffing F.C.C. in ‘Net Neutrality’ Case, Court Allows Streaming Deals
Clyde Wayne Crews Jr. at Forbes - Court Rules Against Net Neutrality In Verizon V. FCC
Bits Blog at the New York Times, The Nuts and Bolts of Network Neutrality
Danny Kimball at Antenna, Why Verizon v. FCC Matters for Net Neutrality— and Why It Doesn't writes:
"1. The rules haven't been very effective....Nicholas Economides, The Telecommunications Act of 1996 and its Impact
2. Overturning the rules could actually lead to getting better ones."
-- Law Pundit comment: Sorry, Danny, but obtaining "better" rules in the current American political climate is perhaps a Utopian illusion.
Scott Cleland, Chairman, NetCompetition, Why the 1996 Telecom Act’s Unbundling Model is Obsolete, writes:
"The transition to competition that the Telecom Act envisioned has happened, just not the way Congress expected. This means that the 1996 Telecom Act’s transitional purpose is done and that its continued incorrect focus on implementing obsolete competition policies is counterproductive and dysfunctional."
-- Law Pundit comment: Sorry, Scott, but federal regulation of business and the communications industry has the same basis as our criminal laws. People when unregulated abuse the system, in all walks of life. How many real options do many users today have -- or not have -- in obtaining a broadband Internet connection? Everything is dominated by monopolies, and their top services concentrate on cream skimming (as noted by Crichter above). Here is a map of Verizon's cream skimming FIOS service from TopTenReviews.com 2014 Best Internet Service Provider Comparisons and Reviews:
"I am part of the 30% of Americans who don't have real broadband access at home. And no, this is not by choice…entirely."Gerry Smith, Huntington Post, in FCC Finds Rural Internet Access Is Still Lagging wrote in 2012:
"About 19 million Americans still have no access to high-speed Internet, according to ... [a report of] the Federal Communications Commission.
About 14.5 million of those without access ... live in rural areas, where Internet providers do not offer service because "there is no business case to offer broadband”....
The Telecommunications Act of 1996 tasked the commission with ensuring that broadband is rolled out on a "reasonable and timely" basis to all corners of the country.The decision by the Appeals Court will not improve this situation. Quite the contrary, it will allow companies not only to continue to concentrate on the most lucrative sources of revenue, but also to refine even those markets by offering bennies to the biggest customers, the public interest notwithstanding.
But the [FCC] report found this is not happening."
In closing, take a look at
Betty Isaacson at the Huffington Post,
Why You Should Be Freaking Out About The End Of Net Neutrality
That could be the future of the Internet.
Monday, January 13, 2014
Paul Krugman Keeps Hammering at Europe in "Success, European Style"
Because of its austerity policies, Paul Krugman keeps hammering at Europe, this time in Success, European Style. Some critique is surely justified, some not.
We have some connections in Ireland, but not enough to judge the economy of the country as a whole. As everywhere, you have plusses and minuses.
Sometimes I wish Krugman would resurrect discussion of the economic doctrine of "comparative advantage" in comparing the sometimes non-comparable apples and oranges of the national economies.
Indeed, seen fairly and impartially, what should be our realistic expectations concerning the various economies of the world, given their natural and human resources and economic, social, political and legal structures?
We have some connections in Ireland, but not enough to judge the economy of the country as a whole. As everywhere, you have plusses and minuses.
Sometimes I wish Krugman would resurrect discussion of the economic doctrine of "comparative advantage" in comparing the sometimes non-comparable apples and oranges of the national economies.
Indeed, seen fairly and impartially, what should be our realistic expectations concerning the various economies of the world, given their natural and human resources and economic, social, political and legal structures?
The American Criminal Justice System as a Manifestation of "Racial Democracy"?
Jason Stanley and Vesla Weaver at the New York Times have a devastating empirical analysis of the color-discriminatory criminal justice system in America in their article titled Is the United States a 'Racial Democracy'?.
They write there, inter alia:
What correlation can be drawn between the above statistics
and the increasing inequality of income and wealth in America
during the same period of time?
Is it possible that nearly everyone knows the answer to that question without even having to look at the mathematics of money earnings in the USA?
They write there, inter alia:
"Just from 1980 to 2006, the black rate of incarceration (jail and prison) increased four times as much as the increase in the white rate. The increase in black prison admissions from 1960 to 1997 is 517 percent. In 1968, 15 percent of black adult males had been convicted of a felony and 7 percent had been to prison; by 2004, the numbers had risen to 33 percent and 17 percent, respectively....Our question here is:
Evidence suggests that minorities experience contact with the police at rates that far outstrip their share of crime....
the evidence shows that black incarceration is out of step with black offending."
What correlation can be drawn between the above statistics
and the increasing inequality of income and wealth in America
during the same period of time?
Is it possible that nearly everyone knows the answer to that question without even having to look at the mathematics of money earnings in the USA?
Tuesday, January 07, 2014
Unemployment Rate in Germany Steady at 6.9%, at 12.1% in the Eurozone, and at 7% in the USA
Germany Unemployment Rate Steadies at 6.9%
according to Finances.com, while the Eurozone still languishes at 12.1%.
The amazing thing is
that in spite of all the Obama naysayers out there,
U.S. unemployment dropped to an almost German-equivalent 7.0%
at the end of the year 2013, according to TradingEconomics.com.
according to Finances.com, while the Eurozone still languishes at 12.1%.
The amazing thing is
that in spite of all the Obama naysayers out there,
U.S. unemployment dropped to an almost German-equivalent 7.0%
at the end of the year 2013, according to TradingEconomics.com.
Saturday, January 04, 2014
U.S. Supreme Court Enters Software Patent Wars: Are Computer Implementations of Abstract Ideas Patentable?
Should computer software be patentable?
Well, what do I know about software?
I am the sole author of a ca. 10 megabyte software adventure program called Infinity One: The Secret of the First Disc (version one), which was submitted to Microsoft in 1994 for a finding that it was Windows Compatible, which it was, resulting in a 1994 license agreement with Microsoft (May 27, 1994) for the use of the Microsoft Windows Compatible Logo on the product packaging.
Accordingly, I know something about software, having programmed that software from scratch, originally for Atari, and then converting it to Windows. I did it all as a beginner, without ever consulting anyone on programming "methods" or "algorithms", having written the program mainly to "learn how".
Did I violate any software patents? Who knows? and who cares!
Software programming is all just math and logical reasoning.
That is the software programming reality.
But it is certainly not the current "legal" reality relating to software and patents.
The U.S Supreme Court has now (December, 2013) put a software patent case on its docket by granting certiorari in Alice Corporation Pty. Ltd. v. CLS Bank International, CLS Bank Int'l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 106 U.S.P.Q.2d 1696, 2013 ILRC 1851 (Fed. Cir. 2013) [2013 BL 124940]
The writ of certiorari raises the following constitutional question:
The case involves the question of a computer implementation of a method for exchanging financial instruments, which an initial panel of judges of the Federal Circuit found patentable, but which the Federal Circuit sitting en banc found unpatentable, finding the method to be merely the computer implementation of "an abstract idea".
The patent system has been broken for years, and up to now the Supremes have been content to issue patchwork decisions that leave many of the major questions raised by software patents up in the air.
Whether the Justices of this particular U.S. Supreme Court can do any better in coming up with a sensible standard in this case is questionable.
We therefore reiterate our stand on this issue -- a position that we think is the only sane patent standard possible to avoid the kind of chaos in which patent law currently finds itself.
If it is deemed that software can be patented (frankly, we would not permit it), then only a specific complete software program should be able to obtain a patent, NOTHING MORE.
A good example here would be a software program that does your taxes.
If you were to write a program called John's Tax Program, there is really no reason not to issue a patent for THAT program in its entirety as a particular solution or "invention", including as it does not only the actual software programming, but also the design of the user interface, etc. i.e. no one should be able to duplicate that software program exactly and sell it under that or another name. YOUR product should be protected. OK. No problem.
But if another person writes something similar called William's Tax Program, it should not be possible for John to keep William from patenting or selling his alternative tax calculation program, even though they both might use the same method or methods for tax calculation, because such software methods are mathematical by nature. They involve NO REAL INVENTION, but merely apply mathematical principles to implement abstract ideas that prevail throughout the legal, business, financial and accounting world.
Indeed, given the laws of mathematics and the demands of calculation generally, there are only so many options available, and at the simplest level, there are as good as no options at all: e.g. "if N=1 and P=2 then N+P=3, go to 4". Mathematical solutions are not inventions, computer or no computer, but are merely creative applications of "tools" that are given.
One could compare them to food recipes.
Creative? Absolutely.
Patentable? No.
People claiming exclusive, monopoly patents for any kind of mathematically based methods implemented in electronic instructions -- software -- are thus trying to exclude legitimate competition from using the "tools" of the trade.
EVERY software patent increasingly takes certain tools away from other software programmers, and that is why software patents are so insidious.
In seeking such patents, patent applicants and holders are not protecting THEIR invention -- rather, they are trying to obtain unconscionable monopolies to keep others from using essential abstract ideas as tools that inhere in mathematics -- tools that should be available to all. The fact that a given mathematical implementation is, for the time being, unique -- does not make it patentable, Diamond v. Diehr notwithstanding (that was a stupid decision).
The same reasoning also applies to software implementations such as the infamous "bounce back" patent of Apple -- essentially stolen from the Atari "Pong" game -- and issued absurdly by incompetents at the USPTO.
In the case of the "bounce back patent", its regrettable grant by the USPTO and its upholding by uninformed courts reduces for other software programmers the ability to implement elementary software programming code (we paraphrase) -- "start at A, go to B, if you get to C, go back to A".
The U.S. Constitution protects YOUR invented product. It says NOTHING about keeping others from producing similar, competing products, which is the norm in the commercial world.
YOU should be able to build and sell YOUR mousetrap. Others should be able to build and sell THEIRS.
YOU should be able to build YOUR mailbox. Others should be able to build and sell THEIRS.
By their very nature -- as in the case of software implementations of abstract ideas -- such products by their very nature MUST be similar, because there are only a few possible ways to catch a mouse and only a few possible ways to build mailboxes, and only a few obvious ways to build handhelds.
To permit patenting of the METHOD, e.g. by "enclosure" of the mouse, or via "a slit insert for letters", whether at your front door or in your electronic mailbox version, is just legally IDIOTIC.
But that is what 99% of patents are today -- abstract ideas implemented on computers or handhelds or other electronic devices, or implemented in media such as the Internet ("one-Click" patents and such nonsense) -- which should NEVER be patentable because NOTHING is invented. Simple abstract ideas are merely being electronically implemented.
Many of the surely well-meaning but erring judges on the Federal Circuit still do not get this and we hope that the Supreme Court does better, but we are not optimistic, given the near-sighted Supreme Court precedent in Diamond v. Diehr and its consequences, which have been catastrophic, creating a "patent industry" far beyond what the U.S. Constituton envisioned and permitting an arguably "decaying" society chained by its ill-conceived monopolistic intellectual property laws, which are not promoting invention and discovery, but rather are monopolizing the fruits of human ingenuity in the hands of the "clever" patented few who know how to use foolish laws to their advantage.
For the story, see:
Well, what do I know about software?
I am the sole author of a ca. 10 megabyte software adventure program called Infinity One: The Secret of the First Disc (version one), which was submitted to Microsoft in 1994 for a finding that it was Windows Compatible, which it was, resulting in a 1994 license agreement with Microsoft (May 27, 1994) for the use of the Microsoft Windows Compatible Logo on the product packaging.
Accordingly, I know something about software, having programmed that software from scratch, originally for Atari, and then converting it to Windows. I did it all as a beginner, without ever consulting anyone on programming "methods" or "algorithms", having written the program mainly to "learn how".
Did I violate any software patents? Who knows? and who cares!
Software programming is all just math and logical reasoning.
That is the software programming reality.
But it is certainly not the current "legal" reality relating to software and patents.
The U.S Supreme Court has now (December, 2013) put a software patent case on its docket by granting certiorari in Alice Corporation Pty. Ltd. v. CLS Bank International, CLS Bank Int'l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 106 U.S.P.Q.2d 1696, 2013 ILRC 1851 (Fed. Cir. 2013) [2013 BL 124940]
The writ of certiorari raises the following constitutional question:
"QUESTION PRESENTEDThe case is being appealed from a Federal Circuit Court of Appeals decision issued by a bevy of allegedly technically-trained judges (how many of them have ever written ANY software?), who in this case were able to reach a majority agreement only on the Per Curiam Judgment, i.e. "the result", but not on the underlying legal standards applicable to software patents.
Whether claims to computer-implemented inventions — including claims to systems and machines, processes, and items of manufacture — are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?"
The case involves the question of a computer implementation of a method for exchanging financial instruments, which an initial panel of judges of the Federal Circuit found patentable, but which the Federal Circuit sitting en banc found unpatentable, finding the method to be merely the computer implementation of "an abstract idea".
The patent system has been broken for years, and up to now the Supremes have been content to issue patchwork decisions that leave many of the major questions raised by software patents up in the air.
Whether the Justices of this particular U.S. Supreme Court can do any better in coming up with a sensible standard in this case is questionable.
We therefore reiterate our stand on this issue -- a position that we think is the only sane patent standard possible to avoid the kind of chaos in which patent law currently finds itself.
If it is deemed that software can be patented (frankly, we would not permit it), then only a specific complete software program should be able to obtain a patent, NOTHING MORE.
A good example here would be a software program that does your taxes.
If you were to write a program called John's Tax Program, there is really no reason not to issue a patent for THAT program in its entirety as a particular solution or "invention", including as it does not only the actual software programming, but also the design of the user interface, etc. i.e. no one should be able to duplicate that software program exactly and sell it under that or another name. YOUR product should be protected. OK. No problem.
But if another person writes something similar called William's Tax Program, it should not be possible for John to keep William from patenting or selling his alternative tax calculation program, even though they both might use the same method or methods for tax calculation, because such software methods are mathematical by nature. They involve NO REAL INVENTION, but merely apply mathematical principles to implement abstract ideas that prevail throughout the legal, business, financial and accounting world.
Indeed, given the laws of mathematics and the demands of calculation generally, there are only so many options available, and at the simplest level, there are as good as no options at all: e.g. "if N=1 and P=2 then N+P=3, go to 4". Mathematical solutions are not inventions, computer or no computer, but are merely creative applications of "tools" that are given.
One could compare them to food recipes.
Creative? Absolutely.
Patentable? No.
People claiming exclusive, monopoly patents for any kind of mathematically based methods implemented in electronic instructions -- software -- are thus trying to exclude legitimate competition from using the "tools" of the trade.
EVERY software patent increasingly takes certain tools away from other software programmers, and that is why software patents are so insidious.
In seeking such patents, patent applicants and holders are not protecting THEIR invention -- rather, they are trying to obtain unconscionable monopolies to keep others from using essential abstract ideas as tools that inhere in mathematics -- tools that should be available to all. The fact that a given mathematical implementation is, for the time being, unique -- does not make it patentable, Diamond v. Diehr notwithstanding (that was a stupid decision).
The same reasoning also applies to software implementations such as the infamous "bounce back" patent of Apple -- essentially stolen from the Atari "Pong" game -- and issued absurdly by incompetents at the USPTO.
In the case of the "bounce back patent", its regrettable grant by the USPTO and its upholding by uninformed courts reduces for other software programmers the ability to implement elementary software programming code (we paraphrase) -- "start at A, go to B, if you get to C, go back to A".
The U.S. Constitution protects YOUR invented product. It says NOTHING about keeping others from producing similar, competing products, which is the norm in the commercial world.
YOU should be able to build and sell YOUR mousetrap. Others should be able to build and sell THEIRS.
YOU should be able to build YOUR mailbox. Others should be able to build and sell THEIRS.
By their very nature -- as in the case of software implementations of abstract ideas -- such products by their very nature MUST be similar, because there are only a few possible ways to catch a mouse and only a few possible ways to build mailboxes, and only a few obvious ways to build handhelds.
To permit patenting of the METHOD, e.g. by "enclosure" of the mouse, or via "a slit insert for letters", whether at your front door or in your electronic mailbox version, is just legally IDIOTIC.
But that is what 99% of patents are today -- abstract ideas implemented on computers or handhelds or other electronic devices, or implemented in media such as the Internet ("one-Click" patents and such nonsense) -- which should NEVER be patentable because NOTHING is invented. Simple abstract ideas are merely being electronically implemented.
Many of the surely well-meaning but erring judges on the Federal Circuit still do not get this and we hope that the Supreme Court does better, but we are not optimistic, given the near-sighted Supreme Court precedent in Diamond v. Diehr and its consequences, which have been catastrophic, creating a "patent industry" far beyond what the U.S. Constituton envisioned and permitting an arguably "decaying" society chained by its ill-conceived monopolistic intellectual property laws, which are not promoting invention and discovery, but rather are monopolizing the fruits of human ingenuity in the hands of the "clever" patented few who know how to use foolish laws to their advantage.
For the story, see:
- Lyle Denniston at Scotusblog in Court to rule on patent rights
- Daniel Fisher at Forbes in Supreme Court Prepares To Wade Into `La Brea Tar Pits' Of Software Patents - Forbes
- Ashby Jones at the Wall Street Journal in Can Software be Patented? Supreme Court to Decide
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