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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! [ Reply to This | Parent | # ]
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