What Does "Software Is Mathematics" Mean? - Part 2

A Semiotics Approach to the Patent Eligibility of Software

by PolR

[This article is licensed under a Creative Commons License.]

I argued in part 1 of this series that computations are manipulations of symbols with meanings. In this article, I hope to further explain this notion using the social science of semiotics. Its object is the study of signs, the entities which are used to represent meaning.

This article elaborates on what Richard Stallman said in the recent Santa Clara Law conference Solutions to the Software Patent Problem.

According to this report Richard Stallman described patents on software as patents on thought, which amount to patents on the use of the human brain to reason and to solve problems by the application of reasoning. This article uses semiotics to show that Stallman's point is more than rhetoric. It is a provably correct statement of fact.

And I'm excited to tell you that Groklaw is listed in the ABA Journal's Top 100 Blawgs this year. It's a real honor, and even more so when you look at the others on the list. Judge Posner's blog is on the list. I mean. So I'm feeling mighty fine.

As you know, appeals are about mistakes of law. So the brief lists the mistakes Novell believes the district court judge made, but you see also how Boies Schiller has managed to tell a complicated story in a simple way that is easy to grasp. I assume it's their contribution to the team effort, because that's what David Boies is famous for. Ted Olson put it like this once a couple of years ago: "Above all, Boies is a storyteller. Nobody is better able to describe the gist of a case." And Boies said:

...Boies acknowledges his ability to cut to the chase in jargon-infused litigation. "It is easy to be accurate if you have the freedom to be complicated, and it is very easy to be simple if you have the freedom to shade the truth," he says. "What's hard is to be simple and very accurate, and that takes work to figure out what are the simple truths that are going to sustain your case."

It's something that Dr. Roger Noll, one of Novell's experts mentioned [PDF] during the trial (see page 37), but the brief turns it into the theme of the appeal, and it's brilliant, in that it neuters the district judge's misguided opinion that Novell had viable options that it failed to pursue.

He is a mathematician, so that is his frame of reference, and I hoped that he'd be able to raise questions that might help conference speakers to see a side of things that they otherwise might not.

As you know, Groklaw stands for the proposition that software is algorithms, nothing else, and that algorithms are mathematics, and hence unpatentable subject matter, so I hoped he'd be able to present that thought. Sadly, although he tried to ask questions, he was never called on.

However at the end of his overview of the day, he writes about his impressions of the day, how the room seemed to be divided into two groups, 1) programmers and academics who teach computer programming, and 2) lawyers or those representing corporate interests. It gives an interesting and unique flavor to his coverage, one not to be found anywhere else.

1) because he doesn't say where he got it, so I could not verify whether it was legitimate or reliable, and

2) because I respect the court's right to decide what is made public and what is not.

The now filed stipulation, titled "Stipulation of Dismissal of Entire Action," in the HTC v. Apple litigation in Delaware states clearly that Apple's claims are dismissed without prejudice but HTC's are dismissed *with* prejudice. That directly contradicts what FOSSPatents claimed was in the 'settlement agreement'. His article claims that both parties claims were dismissed *without* prejudice.

So the media articles that referenced FOSSPatents and wrote that the Samsung motion was mooted because Samsung had agreed to accept a redacted version were flat out wrong on the facts. The motion was not only not mooted, it went to oral argument today, and Samsung won. And that's not all it won.

Part of the reason for the hearing, aside from a speedier resolution, is that there is some question about why there is a motion to unseal the HTC agreement.

But then you know already, if you read Groklaw, that trials never really end, or so it seems sometimes.

Remember when we all laughed at Microsoft's expert, Leo Del Castillo, testifying that the Xbox's version of IE didn't support interlaced H.264? Well, Microsoft just sent a letter [PDF] to the judge, acknowledging that in fact it does. So much for that expert.

The most interesting bit, to me, from yesterday is the news that the judge said two significant things. One was that courts generally follow a modified Georgia-Pacific procedure, which is what Motorola wanted, in figuring a RAND price or range. He didn't commit to doing so himself, but he seems to be leaning in that direction. If you recall, in its trial brief, Motorola wrote:

As Motorolas expert economist, Professor Richard Schmalensee, will explain, the most appropriate way to reconstruct that negotiation is to employ a modified form of the well-known Georgia-Pacific hypothetical negotiation, used in patent damages analysis.

This is a rational approach. Georgia-Pacific is an established, reliable framework for creating a hypothetical negotiation between two parties in damages cases, and provides a helpful analog for RAND licensing. As the Court observed, the Federal Circuit has consistently sanctioned the use of the Georgia-Pacific factors to frame the reasonable royalty inquiry. (Id. at 13.) Similarly, the Court also noted that other courts have spoken to the applicability of the Georgia-Pacific factors in determining a reasonable royalty in the RAND context. (Id.) Moreover, as Dr. Schmalensee will explain, there is significant support in the literature for employing a methodology like Georgia-Pacific to determine RAND terms.

And the judge also criticized a ruling of the 9th Circuit Court of Appeals regarding sealing documents, but in the end he followed it, as he must, and the result of that was that despite his strong personal belief that the public has a right to know what is going on, because there is case law that says otherwise, and he is "constrained" by it, today most of the evidence was presented with our reporter (and all the others) put outside of the room.

The most interesting thing the judge said today, from the notes, was that he hadn't been given much in the way of specifics that would help him reach a figure for Microsoft to pay Motorola. Um. That's why standards bodies leave it up to the parties to work out in bilateral negotiations.

This must be what it feels like to be a marriage counselor. The parties come in, all upset with each other, fervently and loudly enumerating in detail each others' sins up to the heavens, asking you to say *they* are right, and you sit there not knowing what some of what they are saying is even talking about. Even when you do, where do you start with those two?

I have no hope of explaining all of it in one article, so I'll just highlight three items, and I'll show you the docket with all the PDFs, and little by little, I'll try to explain the things that matter most.

For now, suffice it to say that the parties are building up to the December 6th hearing, and it's hot and heavy going, fighting over every little -- and every big -- thing. The big thing is whether or not the judge has the authority to overrule the jury's verdict. On subsidiary issues, Apple doesn't want Samsung to be able to show [PDF] the court production models of newly available design-around versions of the Galaxy S II (T Mobile) (SGH-T989) and a production model of the Galaxy S II Epic 4G Touch (SPH- D710), newly produced uninfringing products, because, Apple claims [PDF], "the record is closed." I mean. Too closed for something that significant? Apple is asking for an injunction, after all, and it claims the new models do still infringe, and evidence of new noninfringing products in the hands of the court is too late? For what? Justice?

The big issue is whether or not the judge can toss out the jury's verdict, the damages part in particular. Apple wants some of Samsung's exhibits excised on the basis that they're "blah blah, too late, not relevant, blah blah", to summarize with my lip a bit curled. Very circuitous reasoning. I'll show you that in actual detail. But they really don't want them in the case because one of them is the judgment dated November 9, 2012 issued by the England and Wales Court of Appeal, ruling that Samsung didn't copy Apple's design patent. How much logic is there to give Apple a lot of damages for a design patent the UK court just ruled was not infringed? And there is a new ruling in another case that Apple wants the court to take notice of, because, I gather, they think it held that jury verdicts are to be treated reverently, but I think they may not have read it all the way through, as it seems to support Samsung's position in one very significant particular, as I'll show you.

Today was the day Motorola presented its opening statement. It had asked to do it as it began its side's presentation. Microsoft has presented, including today, 10 witnesses. Today, Motorola began its side of the story. Phil Dawson summarizes Motorola's opening statement like this:

Microsoft wants low pool rates based on multilateral ex ante negotiations. This does not reflect real-world negotiations. This model does not consider the strength of Motorola's contributions. Other important patent holders rejected the MPEG LA pool. Motorola seeks to simulate a real-world negotiation that would have happened. Motorola will compare the strength of their patents vs. Microsoft patents. Multiple witnesses from multiple companies will attest to how bilateral negotiations would work.