And you are right that it is a "fiction" of a new machine. It is
the practical effect. But why does it matter?
It matters because
we need to have a legal analysis connected to reality. We can't have that when
we treat software for what it is not. A machine is not the same thing as the
practical effect of making a machine without actually making the machine. We
can't treat the two situations as if they were the same without making errors of
logic somewhere.
Because the merits of the invention should be on
the inventive principle, and not the form it takes. [snip] What should matter
is whether the end product is/does something that nothing could do
before.
Isn't this reading Section 101 out of the statute?
Patentable subject matter is broad, but it is not without limits. Whether the
invention is patentable subject matter has nothing to do with the merits.
Patents are not a reward for the sweat of the brow. How can you know whether the
subject matter is in or off limit if you think of it in terms of a fiction? This
can't be done. But the statute requires that this is done.
I believe this is
the main reason why section 101 case law is such an awful mess. The Federal
Circuit insists on analyzing the subject matter of software in terms of a
fiction. As a result the entire patent system is forbidden to analyze the facts
as they are. The result is patent nonsense. (pun intended) Why not do an
analysis based on facts that are correct and see if things get simpler?
It is a waste of time to debate whether the solution is carried
out in a special purpose machine or a general purpose one (or in software v.
hardware).
This can't be true. A patent can limit a hardware
invention to the structure of the hardware when the invention lies in the
structure. People will remain free to implement the capability using a different
structure. If you equate capability with machine, the invention is no longer
limited to the structure. The patent will read on structures which have not been
invented.
If the invention does not lie in the structure it should not be
reasoned about as if a structure was made. If you do you lose your connection
with reality. The patent should make clear that the invention is a process and
not a structure so we know what is the claimed subject matter.
Your article
presuppose section 101 is impossible and the you move to the other sections. But
when we ask for a fact based analysis you say this is a waste of time. But it
turns out that what you call the waste of time is exactly the analysis needed to
fix the section 101 mess. This logic is circular. The obvious solution is to
look at what the subject matter actually is and stop analyzing a
fiction.
Are you trying to expand patent rights to mathematics? [ Reply to This | Parent | # ]
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