Here's a bracing dissection of whether it should be possible to patent software:

Given that an “idea” is not patentable and a generic computer is “beside the point” in the eligibility analysis, all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain....Because generic computers are ubiquitous and indispensable, in effect the “basic tool[]” of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero.

....Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself.

(Note: "Section 101" is 35 U.S. Code § 101, the part of US law that governs patents.)

The interesting thing here is that this was written by a longtime judge for the Federal Circuit Court: Haldane Mayer, a Reagan appointee who is now on senior status. Apparently, Mayer has had enough. In a recent case involving a patent troll, he didn't feel like fiddling around on the edges of the Alice test handed down recently by the Supreme Court. He believes that Alice effectively does away with software patents entirely. Instead, software should be governed by copyright, as it was for decades before a series of vague rulings and the establishment of a new court accidentally created them in the 70s and 80s.

Mayer's analysis is just a concurring opinion and has no legal force. Still, it's encouraging that an experienced judge is saying stuff like this out loud. Maybe a few other will now follow suit. And maybe the Supreme Court will eventually agree. Maybe.

Here's some cheery news: the CFPB has issued new rules to rein in the wild, wild West of prepaid cards. I had to read to the end of the story to find out what the new rules actually were, but eventually I was rewarded for my patience:

The rules specifically require financial institutions that offer prepaid accounts to provide consumers with free and easy access to their account balances, transaction history and a list of any fees charged....Consumers also get protections against fraud under the new rules. A consumer who promptly notifies the issuer about unauthorized transactions will be responsible for only $50 worth of charges....The CFPB also is setting an industrywide standard on disclosures to help consumers understand fees upfront and allow them to easily comparison shop.

Some issuers allow consumers to spend more money than they have on their cards, and the CFPB rules will extend credit card-type protections to those users. Companies offering such cards will have to make sure the consumer has the ability to repay before offering credit. Issuers also will have to give customers regular statements detailing fees, interest rates and other information and must offer at least 21 days to repay the credit before charging “reasonable and proportional” late fees.

Consumers also must be asked before money loaded into the card, such as from a paycheck, can be used to repay a credit bill. And issuers cannot offer credit until 30 days after a prepaid account has been opened.

These all seem like pretty reasonable rules. And they don't apply only to cards:

Popular mobile-payment apps including PayPal Holdings Inc.’s Venmo and Alphabet Inc.’s Google Wallet will be subject to more stringent government oversight under a regulation completed Wednesday....Analysts say other products that could be covered by the rule include Square Inc.’s Square Cash and fintech firm Dwolla’s payment tool.

The digital folks all objected vociferously, of course, because tech. Everyone knows that tech is totally different from non-tech and needs to be allowed to breathe free or else all human progress will grind to a halt.

Luckily the CFPB gave this argument exactly the consideration it deserved. If you're storing money and providing credit, then you have to play fair with your customers. The fact that a microprocessor is involved somewhere along the line doesn't change that.

POSTSCRIPT: I'm eager to hear from Donald Trump and the Republican Party why this is an outrageous offense against the free market right of prepaid card vendors to scam users out of the maximum possible amount of money in the form of exorbitant fees and interest on unwanted loans.

Mike Pence won last night's debate. Pretty much everyone agrees about that. Here's what everyone also agrees about: Pence lied constantly. It was one of the most widespread observations about the debate:

Washington Post: More effectively than any Trump surrogate up to now, Pence simply denied — and denied, and denied, and denied — that someone as essentially good as Donald Trump could hold the views that cameras had recorded him holding.

New York Times, on Kaine's charge that Pence and Trump have praised Vladimir Putin: “We haven’t,” Mr. Pence protested, even though he himself said on CNN last month that Mr. Putin was “a stronger leader in his country than Barack Obama has been in this country.” But Mr. Pence during the debate flatly denied making that remark.

LA Times: [Pence] smoothly, and without a hint of embarrassment, denied that Trump had said things Trump had said.

Guardian: Mostly Pence flatly denied that Trump had made controversial statements and, instead of defending the candidate, resorted to the strategy of gaslighting, by repeatedly challenging known facts to manipulate the truth.

Politico: The main tenet of [Pence's] strategy was to deny that Trump ever said these things to begin with — despite the fact that many of the statements were both real and a part of the public record.

McClatchy: During the few moments he did address statements Trump made, Pence denied them or even misstated them. “No he hasn't,” he said repeatedly.

I didn't have to go looking for this stuff. I just opened up seven debate recaps and found these six. (Only the Wall Street Journal seemed not to notice Pence's behavior.) So here's where we are: Pretty much everyone watching the debate agreed that Mike Pence lied over and over about simple stuff that's on tape and easily verified. And yet pretty much everyone also agreed that he won the debate. Does anyone see the problem here?

Apparently a lot of people needed to clip their fingernails last night:

This suggests that the post-debate spin is going to be more important than usual since so few people actually saw the debate. I suspect that's good for Team Clinton, since Tim Kaine's performance is likely to look better over time. It may not have won people over during the debate itself, but Kaine badgered Pence pretty effectively and did a good job of exposing Pence's unwillingness to defend Donald Trump. In the end, the fact that Pence was so determined to throw Trump under the bus is likely to be the debate's biggest takeaway.

I'm now turning into some of the post-debate blather. The general consensus seems to be that Tim Kaine had the facts on his side; Mike Pence repeatedly refused to defend Donald Trump; and Kaine did a good job of keeping Trump's cretinism front and center. But Pence was calmer, and therefore he won.

CNN's instant poll bears this out. Respondents thought Kaine defended his boss better; was more knowledgeable; and attacked more.

But! Mike Pence was judged more likeable, and therefore he won the debate 48-42 percent. The American public has spoken: they'd rather have a beer with Mike Pence, and that makes him the winner. Some things never change.

On the bright side, though, we will always have Mike Pence complaining that Kaine had "whipped out that Mexican thing again."

This was a more normal debate than last week's, which makes it harder to call. Tim Kaine was very much the aggressor, interrupting frequently and demanding that Pence defend the most egregious of Donald Trump's outbursts. Pence was calmer, and kept insisting that Trump had never said the stuff Kaine accused him of saying. This wasn't true, but there's no telling if the audience at home believed him anyway. In the future, perhaps candidates should be allowed to have a series of video clips they're allowed to display during their answers?

On style, then, Pence probably won with his calm demeanor. On substance, it was a KO for Kaine. Trump really did say all the stuff Kaine accused him of, but Pence simply refused to engage with it. Trump did casually say he didn't care much if other countries got nukes. Trump did say that women who get abortions should be punished.1 Trump's tax plan does include huge cuts for millionaires. Trump did promise to release his taxes and then reneged on it. Trump (and Pence) have called Vladimir Putin a better leader than Obama. Trump has trash talked the military. Trump did call NATO obsolete and then suggest he might not bother defending the Baltics if Russia invaded them.

Neither Pence nor Kaine made any terrible gaffes, and neither landed any killing blows. This means that partisanship probably weighs most heavily here, but even with that in mind I'd give the debate to Kaine. The post-debate commentary is going to make it clear that Kaine was mostly accurate about Trump, and that Pence simply wasn't willing or able to defend him. I don't know if that will be devastating for Pence, but it won't make him look good. Overall, I give Kaine a B+ and Pence a B-.

As for Elaine Quijano, I really don't know. She didn't take control of the debate at all, and frequently allowed Pence and Kaine to talk when she should have shut them up—but just as frequently moved on when she should have let them talk. Was this because of the debate rules? Because Pence and Kaine refused to abide by the rules? Or because she's a bad moderator? I don't know.

A full transcript of the debate is here.

1He took it back the next day, but he still said it.

In a presidential campaign featuring superstars Hillary Clinton and Donald Trump, Tim Kaine and Mike Pence have faded so far into the background they're almost invisible. In fact, they've both avoided controversy so assiduously that the main attacks against Kaine are about his defense of murderers several decades ago, while the biggest complaint about Pence is that he claimed cigarettes weren't killers back in the year 2000. I'm exaggerating here, but only barely.

Actually, what most people seem to be looking forward to is Pence's defense of Donald Trump's various meltdowns. Sadly, he's probably well prepped for this. But you never know. There might be fireworks anyway.

10:35 - And that's a wrap.

10:33 - Pence: We'll unify America by bringing change to Washington DC, standing tall in the world, and supercharging the economy. Um.

10:31 - How will you unify America if you win? Kaine: Republicans respect Clinton. She has a track record of working across the aisle. Kaine says he does too. Not a bad answer.

10:27 - Pence opposes abortion. Kaine supports women making their own choices.

10:26 - Now it's a lovefest. Everybody agrees that faith is great. Everybody agrees that the other guy's faith is great.

10:23 - Now let's talk about faith. You will be unsurprised that both men are deeply, deeply informed by their faith.

10:20 - Quijano: I remind you both that the question is about North Korea.

10:19 - Now Kaine is talking about foundations too. The Clinton Foundation is great! But the Trump Foundation is "octopus like" and breaks the law all the time.

10:16 - What would you do to prevent North Korea from developing a missile that can reach the United States? Pence delivers a bit of mush and then....returns to Trump's taxes and the Clinton Foundation. Huh?

10:11 - Finally Kaine says something not really true: that Trump didn't know Russia annexed Crimea two years ago. Pence goes after it. But he's still stuck on most of Kaine's accusations because they're all on tape.

10:10 - Kaine has generally been pretty aggressive in his accusations against Trump. Pence is constantly rolling his eyes and saying "Oh please" or something similar. But he rarely even tries to explain why Kaine is wrong. He just switches to an attack on Hillary Clinton. I guess he doesn't have much choice since Kaine has mostly been accurate.

10:07 - Now Kaine makes it explicit: He's tried to get an answer on nukes "six times." Pence won't defend Trump's position. Quijano bails out Pence by moving to a new subject.

10:05 - Kaine keeps poking Pence on Trump's casual attitude toward other countries getting nuclear weapons. Pence resolutely refuses to deal with this.

9:58 - A question about Aleppo. And speaking of Aleppo, Gary Johnson says his ignorance of geography is a benefit. Folks who know all those foreign countries and foreign leaders just end up wanting to attack them. Seriously.

9:54 - What is an "intelligence surge"? Kaine: Expanding our intelligence capacity and building better alliances. Okey doke.

9:49 - Is America more or less safe than it was eight years ago? For the record, I'd say it's about equally dangerous.

9:48 - Kaine doing a pretty good job of running down why Trump is dangerous on foreign affairs: Trash talks the military, wants to tear apart alliances, he loves dictators, and he wants everyone to have nukes.

9:44 - Back to immigration. Pence trying to soften Trump's plan. Kaine trying to make sure everyone knows every single detail.

9:41 - Pence now trying to make case that "basket of deplorables" is equivalent to all of Trump's insults. It's not working.

9:40 - Interesting that Pence rather obviously refused to say the word "wall" when talking about Trump's immigration plan.

9:34 - Pence: Enough with all this institutional racism crap. Kaine: We can't be afraid to bring up issues of bias.

9:31 - Both guys agree that cops are great.

9:29 - What is Elaine Quijano doing? She's not keeping either of these guys in line, and she's only allowing a minute or two on each subject. Come on. This isn't a race to see who can talk about the most subjects in 90 minutes.

9:27 - Pence to Kaine: "There they go again." Oh please.

9:26 - What the heck are the rules for this debate? Are interruptions allowed? Are there time limits? Or what?

9:22 - Pence to Kaine: "You can roll out the numbers" but the economy sucks no matter what all your egghead numbers say.

9:21 - Kaine on Trump: "His economic plan is a Trump first plan." Meh.

9:19 - Nobody is making any funny faces yet.

9:16 - So far, our moderator is not doing a good job of keeping things in line. Maybe she's restrained by bad rules?

9:14 - Both candidates are trying to be tough. It's a little comedic. Sort of like five-year-olds trying to look tough next to John Wayne.

9:12 - Why do so many people think Donald Trump is erratic? How much time do we have to answer this question?

9:11 - Why don't people trust Hillary Clinton? Hmmm. Let me think.

9:03 - And we're off. Can I remember to use Eastern time zone time stamps this time? Wait and see!

9:00 - CNN can't seem to make up its mind whether this debate is going to be a snoozefest or the biggest moment ever in debate history.

8:55 - David Axelrod: There will be no painting outside the lines tonight.

Tax guru David Cay Johnston says he thinks he knows what Donald Trump's $916 million operating loss in 1995 was all about. The story starts when Trump's casino empire crashed in the early 90s, producing multiple business bankruptcies. And because Trump had personally guaranteed about a billion dollars in loans, it nearly produced a personal bankruptcy too. Here's Johnston's theory of what happened next:

  • Trump threatened to tie his bankers in legal knots for years unless they forgave the loans that had been largely responsible for his operating losses in the first place. Eventually, he badgered them into agreeing.
  • But a forgiven loan is income, so this produced a billion dollars in taxable income for Trump that would have offset his $916 million in operating losses. What to do?
  • In 1995, Congress passed a law that allowed real estate professionals to trade the taxes on forgiven debt for future real-estate tax deductions.
  • This gave someone at Trump HQ a bright idea: why not use this trade to dump his tax obligation onto Trump's casino properties? Normally this would just be trading one tax obligation for another, so to get around that they advised Trump to take all his casino holdings and put them into a shiny new public company.
  • Here's the genius part. By trading away the taxes on his forgiven debt, Trump kept his $916 million operating loss. It was the new public company that got saddled with property that owed a lot more in taxes than it normally would.
  • Thousands of people invested in the company, and lost everything when Trump drove it into the ground. But as CEO, Trump paid himself $82 million along the way.

Isn't that great? Trump got $916 million in tax free income over the next decade. He shoveled a bunch of problem properties into a public company. He paid himself $82 million to run the company. And everyone who bought the stock took a bath.

In the end, there was one big winner: Trump. And three big losers: Trump's bankers, the American taxpayers, and all the investors in Trump's crappy public company. This is the business acumen that Trump says qualifies him to be president: not the ability to run a company profitably, but the ability to manipulate the legal system into letting him dump his debts onto other people. Trump 2016!

Yesterday I wrote a bit about how my bout with cancer hadn't produced any life lessons for me. But millions of other people have been diagnosed with cancer too, and every one of them has a story of their own. So why bother sharing mine? This is why:

Given the tsunami of celebrities telling us their stories about how cancer profoundly affected them, there might be a lot of people who feel like there's something wrong with them for not having a profound reaction of their own. But there isn't, and it might help to hear that plenty of other people feel the same way.

On a similar note, a few days ago I talked to a friend who was recently diagnosed with lymphoma. He told all his friends and coworkers about it, and everyone was duly sympathetic and supportive. But then, when all the tests had finally been completed, it turned out to be a very low-grade cancer that posed no immediate danger. After all this fuss, he had to go back and tell everyone that it wasn't a big deal. There would be no chemo, no battle, and no further tests. Just a blood draw every few months to monitor things. He says he felt kind of guilty about the whole thing. I wonder how many other people have felt that way?

Everybody responds differently to this stuff. There's nothing wrong with you if your response doesn't follow the Hollywood script and you don't feel like turning the world pink every October. Chances are, lots of people feel the same way. But you'll only know it if all those other people open up and say so.

Rebecca Berg reports on yet more possible sleaziness surrounding the Trump Foundation:

As Donald Trump began making noise about a possible bid for president in 2011, South Carolina conservative activist Oran Smith caught the celebrity businessman’s eye....Trump called Smith and invited him to meet at Trump Tower in New York....Trump was “laying the foundation for a ... campaign,” Smith thought at the time.

During their meeting in Trump’s office, they discussed Christian faith and religious liberty. Smith was struck by “a different Donald Trump than I expected.” On his way out the door, Smith asked that Trump consider donating to the Palmetto Family Council....Trump delivered. “It was a quiet donation that came with a simple cover letter,” Smith said. It read: “Great meeting with you and your wife in my office,” dated May 6, 2011. Enclosed was a check for $10,000 from the Donald J. Trump Foundation.

....From 2011 through 2014, Trump harnessed his eponymous foundation to send at least $286,000 to influential conservative or policy groups, a RealClearPolitics review of the foundation’s tax filings found. In many cases, this flow of money corresponded to prime speaking slots or endorsements that aided Trump as he sought to recast himself as a plausible Republican candidate for president.

There is nothing wrong with a presidential wannabe contributing money to groups that might help him politically. Nor is there anything wrong with a presidential PAC contributing money to potential supporters. But there is something wrong with the director of a charity contributing money to a group in order to benefit the director himself:

The donations to groups that granted Trump plum speaking slots or otherwise promoted his political aspirations also might run afoul of self-dealing rules for private foundations, which prohibit a foundation’s leadership from using donor money for its own gain.

“Getting the right to speak or access to networking events, that’s definitely starting to push into self-dealing, where you’re using the private foundation assets to benefit Mr. Trump,” said Rosemary Fei, a partner at the Adler & Colvin law firm in San Francisco, where she specializes in charity law.

Once again, we see that Donald Trump viewed his foundation as a personal piggy bank, useful mainly as a vehicle for tossing around money that might benefit himself or his businesses. The amount given to charities with the goal of simply helping other people appears to be minuscule. If there's nothing in it for Trump, he just doesn't bother with it.

Believe it or not, I try hard not to spend too much time covering every utterance from Donald Trump's pie hole. Sadly, as the chart on the right shows (data courtesy of Quiddity), I fail more often than I succeed. Today I shall fail again.

First up, John Sides informs us that, even now, an awful lot of voters seem to think that Donald Trump is a self-made man. Nearly half believe that his father was roughly working class or so, rather than the millionaire developer he actually was. Presumably they also don't know how much money Trump got from his father, either via loans, gifts, or eventually, inheritance.

The truth, of course, is that Trump's father spotted him nearly $40 million in today's dollars, and eventually Trump squandered it all:

Most of the $916 million loss that Trump claimed for 1995 is probably derived from about $900 million in bank loans taken out in the mid- to late 1980s that he had personally guaranteed and that he used to wildly overpay for hotels, airlines, yachts, barren land and other trinkets....None of these things are hallmarks of a great business operator or dealmaker.

Trump isn’t that financially sophisticated. In my interviews with him, he had trouble explaining such basic real estate concepts as “cash flow.”...His eyes tend to glaze over when complex numbers come into play. Trump’s own former accountant, Jack Mitnick, told the Times that it was always Trump’s ex-wife Ivana who asked probing questions about the couple’s taxes.

I've written about this several times before. Trump did a pretty good job building Trump Tower in 1984, but that was it. He didn't have the attention span to repeat his success, instead throwing vast amounts of money at lousy businesses that no one else wanted. When that blew up, he managed to take the smoking ruins of his casino operation and turn it into a public company, which he mismanaged to its death, paying himself $82 million along the way. Since then, he's made nearly all his money from entertainment and licensing.

Will Hillary Clinton bring up this subject in Sunday's debate? Will she wait until the very last second, as she did with Alicia Machado, guaranteeing that Trump will go ballistic and keep it in the news for the entire following week? Maybe!