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| Authored by: PolR on Monday, June 11 2012 @ 04:59 PM EDT |
If you think that way I believe you must have misunderstood a major point I am
trying to make. But you don't provide much details so I can't pinpoint the
divergence.
Perhaps I didn't communicated clearly the implication, that when the patent
claim is confined in the four corners of a computer the subject matter is always
an abstraction unable to provide by itself the claimed utility?
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| Authored by: bugstomper on Monday, June 11 2012 @ 07:43 PM EDT |
PolR has been talking about "software is math" but the argument he
makes that I find most compelling is the one about software not including the
interpretational meanings that we assign to the bits and the abstractions of the
software. The program or its algorithm does not calculate the word that the user
intended to type on the touchscreen keyboard: The inventor uses the result of
the program or algorithm as part of the construction of a system that includes a
touchscreen being used as a keyboard by a typist.
Where I disagree with PolR is that this is an argument for "software is
math" or that his other software-is-math arguments are a useful approach to
getting rid of software patents. Instead this argument says that most software
patents are not claiming anything that the invention really does. They are only
claiming arbitrary interpretations of the broad concepts and calculations that
are really in the invention.
You can say that this is covered under "practical utility". If you can
get the Supreme Court to throw out most software patents by approaching it that
way, all well and good. But if by "practical utility" you mean that
the claims have to talk about doing something useful, I don't see how that test
really does cut to the heart of the matter. Take the '104 patent in the Oracle v
Google case for example. The problem is not that doing resolution of symbolic
references is not useful. You can argue that they have a technique that is used
to make loading and running of java programs take less time on the computer.
That seems useful.
But the claims talk about resolution of symbolic references when there are no
symbolic references in the system, not in the same way that there is a
touchscreen keyboard and fingers and a typist in the Swype system. A
"symbolic reference" is an abstraction we use to assign some semantics
to the computation.
When people talk about "software patents" I think about patents that
are dealing purely in abstractions. To me Swype is not a software patent, just
like a process patent on curing rubber is not a software patent even if the
claims include software steps of computing the proper amount of chemical to add
at what temperature in what order.
Remove the arbitrary label "symbolic reference" and the '104 patent is
about speeding up use of a computer running a program by caching and re-using
the results of a computation, and by delaying the computation until it is needed
("lazy evaluation") so that unneeded computations are avoided. That
might even be useful. It would also be very broad and very old.
While you, PolR, and I seem to be saying the same thing when we drill down to
the actual cases, I think it does make a difference if you then talk about it in
terss of "practical utility" or "software is math" or
"claims using arbitrary semantic labels for what are just broad
abstractions like bits and computations".
Well, maybe my version is not nearly so catchy and understandable :). But I
think it is more accurate.
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