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You missed a bit | 335 comments | Create New Account
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You missed a bit
Authored by: Ian Al on Friday, July 13 2012 @ 12:42 PM EDT
No, I was pointing out that if there are two independent inventions in a patent, the law says that the claims for each invention must be clearly identified. If the claims for both inventions are mixed up, then they fail to meet 35 U.S.C. 112 for either invention. The implementer can only guess which claim applies to which invention and this does not constitute full, clear, concise, and exact terms as required by U.S.C. 112.

The patents I have seen are not claimed to have more than one invention in them.

The general point we make here is that software in computer memory is just the setting of memory locations to an electrical charge or an electrical state. Software does not change or reconfigure the computer or change electrical switches or circuits in the computer. The memory states represent data and instructions for the processor to carry out. It can only do this because all forms of computer programs are mathematical algorithms that can be executed by the processor. This is because the processor and memory approximates to Alan Turing's hypothetical computing algorithm. Please note that he was talking about an abstract idea for executing mathematical algorithms and not talking about the electronic realisation of such a concept as found in electronic computers.

From Flook:
"Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application."
Please note that, in Flook, the Supreme Court cited the Morse case whereby the standard is that all phenomena of nature or mathematical formulae must be considered as 'well known' even if the mathematical formulae is a very useful and clever new mathematical algorithm.
Respondent's process is unpatentable under 101, not because it contains a mathematical algorithm as one component, but because once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention.

Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application...

Respondent's application simply provides a new and presumably better method for calculating alarm limit values.
Since all programs are algorithms to be run on the computer, Flook tells us that the inventive concept cannot be in the software (math algorithms). Neither can it be in the computer because the general purpose computer is not changed in any way by the program. There cannot be a computer with installed software that is statutory subject matter as a machine because the machine is just the same as it was before the new math algorithm was put in the memory and executed by the processor.

Software is a series of computer processor instructions carried out by the computer. This is not a process according to 35 U.S.C. 100.
(b) The term "process" means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."
As you point out, this does not define the meaning of 'process' or 'method' and we must rely on accepted dictionary definitions.

process

n 1: a particular course of action intended to achieve a result; "the procedure of obtaining a driver's license"; "it was a process of trial and error"

method

n 1: a way of doing something, especially a systematic way; implies an orderly logical arrangement (usually in steps).

Since a process is a course of action followed by a person with the intention of achieving a result, the computer can only be something for the person to use to follow the course of action. The computer cannot infringe on a process patent in its own right because the computer is an inanimate device not capable of following a course of action in its own right and not able to have its own intentions.

It may be that a computer with software constitutes a known machine used in a process (as specifically permitted in ยง 100) as long as the inventive concept in the process patent is not the use of the computer or the running of the computer algorithms.

Perhaps you will see why we were so upset when Oracle obtained patents on the methods used by software authors when writing software algorithms. What is worse, the inventions were described both as a machine and a method invention.

If they had been found infringed by the jury, the court would have found that the computer was infringing on the doing of the patented method. Further, simultaneously, the charging or setting of memory locations in a mobile phone infringed on the same invention because it was also claimed as a machine. The infringement would have been found in mobile phones for which the software programmer used his skill and judgement using a method of programming similar to the programming method described in the patent.

I have ranted on this topic in several comments. I think the rant is justified.

br

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

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