IT professionals on software patents

October 9th, 2012 at 9:00 am by David Farrar

Institute of IT Professionals CEO Paul Matthews writes:

 The latest example is last week’s Institute of IT Professionals poll where a resounding 94 percent of IT Professionals with a view favoured the Institute continuing to oppose software . Yes, 94 percent. And not a small poll either – over 1000 of our members responded.

That is a huge vote. It clearly shows that those at the coalface of IT, have a very united view on the issue of software patents.

So why do so many oppose software patents? One reason is that the last few years of software-patenting decisions means it’s now simply not possible to write software today without breaching patents. Many believe software patents represent the biggest threat to our profession since Turing kicked things off at Bletchley Park, as do the patent trolls; lawyers who increasingly make a living out of gaining patents on obvious things and suing successful technologists.

This is seen in the US a lot, with patent wars. In the IT realm, they have become about lawsuits, not innovation.

Another reason is the total unsuitability of the patent system to software. Imagine if Mary Shelley was able to patent the concept of a horror novel when she wrote Frankenstein, preventing all future horror novels that might compete with hers. It wouldn’t matter that Frankenstein was inspired by prior gothic novels such as The Castle of Otranto from 1764.

Like software, book genres and plot “inventions” are built on those that came before them. Allowing someone to take this prior work, box it up differently then gain monopoly rights preventing others from doing the same does nothing other than stifle innovation. Like with books, copyright does the job for software.

Think if you had patents over political policies. Political parties could sue each other for stealing their ideas!

During the second reading of the Patents Bill in Parliament Minister Foss stated “There has been no change to the select committee’s intention that computer programs should not be patentable” and repeated four times that under the SOP, a computer program will not be patentable. Four times.

So will the ‘as such’ wording mean that software can’t be patented in New Zealand as the minister apparently believes?

The patent lawyers certainly don’t seem to think so.

In commentary in the Law Society’s LawTalk magazine Barrister Clive Elliott writes that the proposed exclusion of computer programs “has been scrapped” by the minister’s SOP which “restores the status quo”.

A prominent IP lawyer Andrew Brown QC has written that the SOP “will effectively allow patentability of computer programs”. Attorney Doug Calhoun states that with the SOP there is “no real change in the law” and IT lawyer Guy Burgess states that the wording “fails to exclude software patents”.

In fact other than the minister’s advisers, we can’t find a single patent expert or lawyer who thinks the minister’s ‘as such’ wording will actually mean software is not patentable. We were also easily able to compile a sample of 150 seemingly pure software patents granted in Europe over the last 12 months under this wording and the number is likely far higher – some say as high as 30,000.

That is a good challenge. Is there a lawyer out there who thinks the “as such” wording will not lead to software continuing to be patented in NZ? Certainly many lawyers support the wording – but that seems to be because it will allow patents.

So has the government buckled under pressure from the US and decided to backtrack on the unanimous decision of the select committee? Do they now support the patenting of software against the wishes of the vast majority of the kiwi software industry? 

If so, we wish they’d just come out and say so.

Or have they simply stuffed up by suggesting adopting wording into law that has been proven overseas to have the exact opposite effect of what they intend?

As LV Martin used to say, it’s the putting right that counts. Circumstances change and the implications of the European decision from 2010 is only really becoming clear now. If it’s a stuff-up it’s easy to fix, minister. Simply remove 10A(2) and we’ll all sing your praises from the rooftops.

I think the Government may underestimate how strongly most of the ICT community feel on this issue. The 94% vote should ring warning bells.

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26 Responses to “IT professionals on software patents”

  1. adamsmith1922 (888 comments) says:

    My supposition is that Foss and/or his officials will not listen. A hallmark of bureaucratic arrogance/incompetence.

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  2. Nigel Kearney (864 comments) says:

    More than 94% of IT professionals have never developed anything sufficiently novel and useful that it would be capable of being patented. Just as more than 94% of medical professionals have never developed a new drug. It’s hard to imagine a more unsuitable subject on which to rely on the preference of the majority.

    In your previous post on this, you talked about how patents for new drugs are a good idea because of the work involved in developing the drug vs the ease of copying. Surely the ratio of effort to develop software vs the effort to copy it is larger still.

    It would be bad enough if the alternative to legal protection for software was everyone being free to copy stuff, with the downside being disincentive to create because you can’t get paid for it. But the real alternative is to keep it completely secret, the way that Coke keeps their recipe secret. With a web front end or other thin client this is very easy. And it will stifle innovation. If the Coke recipe had been patented when created, it would have been in the public domain long ago.

    [DPF: You seem to not understand the difference between copyright over code, and a patent. No one is suggesting people be free to copy software]

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  3. Yvette (2,692 comments) says:

    It will be interesting what implications the TPP has for IT patents and copyright – whether local law is superseded by international [US mainly] corporation requirements, currently being discussed in secret.

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  4. queenstfarmer (748 comments) says:

    More than 94% of IT professionals have never developed anything sufficiently novel and useful that it would be capable of being patented.

    No. More than 94% of IT professionals are not multi-national corporates that can afford to acquire and defend patents, and then use them to attack any fledgling competitors.

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  5. DylanReeve (179 comments) says:

    It’s been suggested that it’s now IMPOSSIBLE to write a software application without infringing on patents (and you’d spend millions to know for sure). The problem with software patents is that they tend to describe basic processes in broad terms that can then apply to almost any implementation of any similar idea (and in some cases even ideas that aren’t similar).

    The patent that Apple used, successfully, to ban Samsung from selling a number of their products in the USA (although the ruling is current stayed pending appeal) is one that describes, in broad terms, a system whereby a user might search both the internet and local content from a single location. It doesn’t describe the method for doing so, but just the idea that it could be done. That is not an invention.

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  6. berend (1,634 comments) says:

    DPF: The 94% vote should ring warning bells.

    Wasn’t 94% for the right of parents to smack their child, if there really was a need to do so?

    John Key outlawed that too.

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  7. berend (1,634 comments) says:

    Nigel Kearney, if you really believe that you need to patent software in order to be successful as a software company, you know very little of what makes software companies successful.

    Secondly, on copying software: there are many successful open source companies out there. So even that works.

    I haven’t even gotten into the question whether writing closed source software is morally proper, but it’s definitely not necessary to make a living.

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  8. lightweight (13 comments) says:

    If anyone hasn’t seen it, this New York Times article (http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html) published yesterday makes the absurdity of the US software patents situation clear, and it shows how the US market is starting to rebel against it.

    Software patents are something we DO NOT WANT in New Zealand (we have them now). In fact, if we explicitly remove the ability to patent software – with well written legislation, not the “as such” rubbish the Minister is currently proposing – we can expect to gain huge credibility in the eyes of software developers around the world as a global real leader, a country that “gets IT”. We might see quite a lot of them interested in moving to NZ. Let’s not forget that good software developers may well be THE engine of our economy prosperity in the coming years… possibly the *only* engine with sufficient potential: there’s only so much milk and beef and radiata pine that we can usefully produce and sell.

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  9. Falafulu Fisi (2,176 comments) says:

    Quote…
    Like software, book genres and plot “inventions” are built on those that came before them. Allowing someone to take this prior work, box it up differently then gain monopoly rights preventing others from doing the same does nothing other than stifle innovation. Like with books, copyright does the job for software.

    Stupid comparison. So, someone invented some mechanical device for a vehicle, machinery, etc,… using Newton Laws (he/she must have used newton laws in his/her discovery or otherwise his/her invention was designed using some different laws of physics from another universe or dimension). The fact that inventor used Newton Laws in his invention, doesn’t diminished his right to patent his invention.

    The majority of IT professionals (everywhere) don’t understand original ideas. Ideas that sprung into existence from R&Ds derived from original work. What I mean here, most IT professionals do not read computing peer review journals to understand how costly these R&Ds are. I do agree that patent trolls must be opposed. I also agree that granting patents to pub invention must be opposed. Pub invention didn’t take an army of PhDs to come up with the invention let alone costs more than hundreds of thousands (or even millions) to do the R&D which lead to an invention. Pub invention started out by 2 or more people arranging to meetup in a pub for a beer to discuss some ideas. These are the inventions I agree that should not be granted a patent. They are mostly generic.

    I recalled the Shipley Government trying to entice Motorolla to set up an R&D center here. Motorolla however decided to look somewhere else, simply because there were not enough IT & Engineering graduates/postgraduates professionals in NZ. Giants like Google may think twice about setting up an R&D center here, for reason that their work can’t be protected here. Google does in fact do original R&Ds. They employ thousands (of PhDs in math/computing/engineering) to do nothing else all day but to invent new methods and algorithms. Sometimes Google researchers publish their work in academic research journals and sometimes they don’t. Microsoft and other IT giants do exactly the same thing. The number of publications that are pouring out from their various R&D teams is prolific. These are the inventions I’m talking about that should be protected. They are not inventions originated in a pub discussion that costs $15 for 2 pints of lion reds.

    I’m for the patent protection of inventions from original ideas such as the types of R&D that Google, Microsoft, IBM are doing. Also these types of work are also done at our local Universities on behalf of local private companies. It must be protected. One example was the work done by AUT Knowledge Engineering Center lead by Prof. Kasabov on developing in-car noise cancellation/suppression algorithms, which they did on behalf of Navman. This kind of inventions were not discussed in a pub in a friday evening. The invention came into fruition after some months of R&Ds, not by one staff but by 3 post-doctoral staffs. We know that it costs alot for one PhD to do R&D, let alone this work done for Navman involved 3 post-doctoral researchers. It took them a while to come up with the invention.

    There is a misconception in the IT industry about what needs to be protected and what not. Majority do not have R&D backgrounds, so they equate pub invention to proper R&D inventions (the types conducted at our Universities, corporations such as Microsoft, Google, IBM, etc,…). These are completely 2 different types of inventions. One needs protections and the other does not.

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  10. Falafulu Fisi (2,176 comments) says:

    I agree with Nigel Kearney. I made my post above before reading other previous messages.

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  11. slijmbal (1,216 comments) says:

    NK says “More than 94% of IT professionals have never developed anything sufficiently novel and useful that it would be capable of being patented.”

    You miss the point, the things that are being patented aren’t novel.

    Amazon patented the single click checkout – we were on a project that did that well before their patent as did many other shopping web sites. It was an obvious improvement as every extra click required to shop reduces the percentage of completed purchases on the web. My idea by the way – wished I had patented it but was too busy with a real job.

    The way the current software patent rules are applied really allows patenting of blindingly obvious or minimilistically improving processes or designs.

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  12. slijmbal (1,216 comments) says:

    @FF actually IT professionals have a very good idea what real innovation and R&D are thus the reason they are almost overwhelmingly against patents on software in their current form.

    I do agree with your comments that there needs to be a way to protect true R&D though the likes of IBM, the historically best example in the IT industry, aren’t averse to their fare share of blindingly obvious patents in amongst some major, real R&D.

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  13. lightweight (13 comments) says:

    Falafulu Fisi, I’m afraid you’re missing the point. We’re not saying that there aren’t software ideas that are *worthy* of a patent, we’re just saying the whole idea of software patents and the way they are awarded is so badly and fundamentally broken that any software patents system is doomed to the same dysfunction we’re seeing in overseas patent systems, with the most dire situation being in the US. Of the thousands of software patents awared in NZ jurisdiction, a precious few are held by kiwi firms – the vast majority (probably 90%) are held by overseas multinationals.

    In NZ (as in the US) software patents are granted in a rubber stamping process – IPONZ does not have assessors skilled enough to rigorously vet them for obviousness or prior art. It is up to independent people and companies to challenge software patent applications if they are to be stopped. This almost never happens because, as you can imagine, software developers have lots of better things to do than pore over software patent applications.

    If a patent application is not challenged, it is almost certainly granted. Based on the random samples of software patents I’ve read, nearly all of them are trivial, subject to prior art, or overly broad, and should never have been granted. Sadly, they have been granted. The onus is now on anyone accused of infringing to provde in court that they are not, or that the patent itself is invalid. The latter is a very difficult defense.

    Defending against any patent infringement case is risky and expensive – defintely detrimental to the business of any kiwi software developer. Almost 100% of the time, anyone accused of patent infringement (which usually comes as a complete surprise to the accused, I might add), finds it far more cost effective to settle with the accuser… *even if the accusation is false, and/or the patent in question deserves to be found invalid in the trial*. They settle instead of fighting the charge (invalid though it might be) because it’s cheaper and less risky to do so. Moreover, they’ve almost certainly been given a financial incentive to sign an NDA so that the media and other potential lawsuit targets never hear about the argybargy. This approach is employed with great effectiveness across the software patent-granting world, and is nothing more than extortion.

    The issue is not whether some software might warrant patent protection – there is certainly the rare software project which might. The issue is whether software patents actually achieve the end of protecting that very very rare software innovation without putting all other software and its developers at unacceptable risk. Looking at it very carefully, on balance, the software developers of NZ (with a few patent holding exceptions) have said “We do not want software patents”. I don’t think anyone can argue with that sort of logic.

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  14. Falafulu Fisi (2,176 comments) says:

    Slijmbal…
    Amazon patented the single click checkout

    That should not have been allowed. That’s a pub invention. Any highschool kid would have come up with the idea without any knowledge of coding. Amazon didn’t spend months doing R&D to come up with that single click checkout idea. So, such patent idea from Amazon was simply a pub invention.

    I have to say that while IT corporations (Microsoft, IBM, Google, Intel, Apple, etc,…) are involved in original R&Ds, they’re also involved in patent trolling which is pathetic.

    Now, going back to my point on granting patent to inventions which came into existence from original R&D. Take the following publication for example (from Microsoft Research – India Division). This is just an example, since Microsoft had published so many research papers in various computing/engineering journals over the years.

    Minimum Makespan Scheduling with Low Rank Processing Times by Aditya Bhaskara, Ravishankar Krishnaswamy, Kunal Talwar, and Udi Wieder.

    Note : The paper was published by 4 PhD R&D staffs, which was submitted to the “ACM” (publisher) and pending publication.

    I would like to highlight the work of 2 of the co-authors in the paper above.

    #1) Kunal Talwar
    #2) Udi Wieder

    Just count how many papers the 2 Microsoft researchers above have submitted to international journals for publications? When someone submits a paper for publication in internationals journals, it must be an original work. If it is not, then the panel of reviewers will recommend to the publisher that your paper is not worth being published, perhaps its not original or not good quality. The fact that R&Ds from Microsoft, Google, IBM, Intel and others are well received by editors of various computing/engineering international journals. Their work are of high quality and any inventions came into existence from such work, deserved to be protected via patent if they (the inventor) decided to do so. That’s the whole point of the argument here.

    Protect R&D-based inventions via patent, but throw out pub inventions, because it is generic (it shouldn’t be covered by patent protection).

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  15. Winston (43 comments) says:

    So 94% of IT professionals are morons? Who knew the percentage was so low?

    This is somewhat relevant, although it may be beyond at least 94% of IT professionals to understand what it was that rob actually invented:

    http://commandcenter.blogspot.co.nz/2006/06/i-cant-find-this-on-web-so-here.html

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  16. chiz (1,119 comments) says:

    But that’s largely the problem FF. A lot of software patents are being granted, and, historically, have been granted, to things that are sufficiently trivial or obvious that they shouldn’t be patentable. The Patent Offices around the world don’t appear to have examiners with any real programming background.

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  17. queenstfarmer (748 comments) says:

    Falafulu Fisi, you are missing the point (again). The argument about software patents is over. RTFA. Every party in parliament is against them. 94% of IT professionals are against them. You have missed the boat.

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  18. Winston (43 comments) says:

    Also, for the vanishingly small percentage of IT professionals who still have a clue, I’d recommend this as a good read:

    http://dl.acm.org/citation.cfm?id=357322&dl=ACM&coll=DL&CFID=171156897&CFTOKEN=20620530

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  19. lightweight (13 comments) says:

    Although, Winston, I’d never suggest that the majority is always right (remember, there was a time when the majority wrongly but resolutely believed in a flat earth, that saying “bless you” would protect you from plague, and that economics trickled down). In this case, however, I’m quite confident that you’re mistaken in your views.

    A lot of people with vested interests in patents are mistaken, because it’s in their best interests to deny the obvious. The bottom line: NZ has decided to end software patents. If you’ve already got one, bully for you. If you think you need to get one, go somewhere else where the majority of software developers haven’t yet organised themselves enough to get them banned. Simple. If you then do so, you’ll be able to take comfort in being part of a tiny and shrinking and, for the most part, justly villified and despised, minority.

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  20. Falafulu Fisi (2,176 comments) says:

    I’ve just been aware today that Microsoft has a Cairo Advanced Technology Lab. I’m not sure what’s the reason for Microsoft to setup an R&D center in Cairo. Setting up an Israeli Advanced Technology Labs is understandable since Israel’s technology education is impressive. IBM has already established a center there in Haifa for some years, so Google has also established an R&D center there in Israel as well in the last 5 years or so.

    I believe that those R&D-based software giants thus don’t setup centers there without guarantees from those governments that their inventions as a result of their R&Ds must be protected via patents. Would these company’s look at setting up a center here in either Australia or NZ in the future? I think that our education system (particularly in technology, science & engineering) is world class, not only that we do speak English here, compared to researchers in Egypt? So, I don’t know why wouldn’t Google, Microsoft, IBM setup R&D center here in the South Pacific? May be this legislation of excluding software patents here in NZ is the final nail in the coffin, because those companies may be looking at expanding into establishing R&D centers in the Asia/Pacific region. Some of them have centers in China, but Taiwan/Singapore are attractive as well and why not us here in NZ or Aussie? The expansions are the result of competitions amongst those big IT corporations. They just don’t want to miss out on highly educated technologists from those countries.

    Lets say hypothetically that one of those big US IT companies is to setup an R&D center here in NZ. The types of IT people that they’ll be looking to hire will not come from the 94% mentioned in the article posted by DPF. Its R&D based roles, so they will recruit from post-grad individuals (masters or PhDs) from our local universities, because what those R&D centers are producing is real inventions.

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  21. lightweight (13 comments) says:

    Falafulu Fisi, I for one wouldn’t be even slightly sad if Microsoft didn’t do any R&D in NZ. Leave it to kiwi companies, who do quite well on the innovation stakes as it is. Given how many $$ billions MS spends on “innovation” they don’t get much return on it. For all of their investment, they’ve only got a few profitable software products, precious few of which could be called innovative.

    But the lack of software patents in NZ shouldn’t matte in any case – they can always continue to get US or EU patents for any software they want, particularly in the US where there’s little if any oversight in the patent process, until those patent jurisdictions either go bankrupt or they smarten up and join NZ in banning software patents, which 94% of developers in NZ know is the only sensible course of action.

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  22. james-c (1 comment) says:

    @Nigel Kearney: “But the real alternative is to keep it completely secret … And it will stifle innovation.”–if a company can keep an idea secret for longer than patent law would prohibit others from using it, and doesn’t expect independent invention in that time, they can still opt to keep the idea secret, even with patent law. Patent law simply also allows them to prohibit others from using an idea that they couldn’t have kept secret, or that they do expect independent invention of.

    @lightweight: “IPONZ does not have assessors skilled enough to rigorously vet them for obviousness or prior art. It is up to independent people and companies to challenge software patent applications if they are to be stopped. This almost never happens because, as you can imagine, software developers have lots of better things to do than pore over software patent applications.”–Yes, the problem is that IT professionals would be required to understand what any given IT patent might cover, what any given piece of code does, and whether there might be an overlap between any of the thousands of software patents in force and any of the thousands of functions in any given program, and it doesn’t make economic sense to have them spending their time doing this instead of writing software.

    Patents on chemicals and pharmaceuticals work because these can be expressed in chemical formulae which can be objectively compared. In these cases, the benefits of patents outweigh their costs. In other cases, the costs outweigh the benefits. In the case of software, the costs far outweigh the benefits.

    Bessen, James & Meurer, Michael J. (2008) Patent Failure. Princeton University Press.

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  23. Winston (43 comments) says:

    FF, it has evidently escaped your attention that Google has had a sizeable office in Sydney for some time. If you think that they would remotely contemplate setting up a similar operation in New Zealand, I would suggest that you are deluded. As are you when you suggest that the NZ education system is world class. Barely adequate, with a few bright spots, is how I would describe it. And the bright spots do not include Auckland Grammar or Kings, whose raisons d’etre appear to be to produce PLU (people like us) to get paid vast amounts of money to serve on boards.

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  24. Falafulu Fisi (2,176 comments) says:

    Winston said…
    FF, it has evidently escaped your attention that Google has had a sizeable office in Sydney for some time

    Winston, do you know what an R&D center is? If you don’t then don’t stop make stupid comment. It may be a development center, but that’s not R&D center. There’s a difference there. R&D center invent things. If you think that Sydney does R&D, then can you point me out to some papers that have been published from the Sydney office? Peer review papers and not case-study papers.

    It escaped your attention above that I do read the peer review research computing/engineering papers on a regular basis, just to find out what’s the latest cutting edge algorithms that have been published. This means that I read papers that have been published from academics, researchers from Google, Microsoft, IBM. Google Sydney don’t do R&D. Here is a music recognition system that I developed about 2 years ago for an online multi-media company which was based on a published paper from Google:

    Content Fingerprinting Using Wavelets

    You can record a song snippet via your smartphone which is sent to the central server, where the heavy task of audio recognition takes place. A message is sent back to the user with the title of the song that she/he just sent through. Its similar to Shazam music recognition services, but the Google algorithm is much more robust than the Shazam system. I’m sure that Google has developed the system and deployed on Youtube. WHY? I have noted that there are some music items (from artists like Prince and others) that you only watch the video but you can’t hear any sound. The system flags it as infringement if the copyright holder have requested Google with a given lists of songs to automatically look out for in case users upload them to Youtube. This is done automatically using the technique described in the paper above, because they can’t manually check millions of video clips that are being uploaded everyday to Youtube.

    So, if you’re one of the 94% who don’t know the difference between new inventions based on R&Ds and one that originates from the pub (which you seem to be), then don’t fucking make stupid comments about Google R&D centers. The office in Sydney is not an R&D center. Microsoft has an office in NZ but it is not an R&D Center. Do you fucking know the difference? I fucken’ know what I’m talking about.

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  25. Winston (43 comments) says:

    FF

    That was an outstanding rant. No, I’m not entirely sure what an R&D centre is these days. Bell Labs used to be one, but Alcatel/Lucent pretty much shut the place down, and all of the good people, such as Rob Pike and Ken Thompson, ended up being employed by Google. Who make money out of advertising, rather than R&D. But anyway, I need to get back to the pub.

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  26. Winston (43 comments) says:

    Also, while in snark mode, “don’t stop make stupid comment” ? I fucken’ know how to fucking spell, and how to write grammatical English. Mr Farrar, please feel free to delete this. Just venting.

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