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The law says that software methods and processor instructions are almost never relevant | 312 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The law says that software methods and processor instructions are almost never relevant
Authored by: Ian Al on Thursday, September 27 2012 @ 04:22 AM EDT
Fonar Corp. v, General Electric:
As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. It is well established that what is within the skill of the art need not be disclosed to satisfy the best mode requirement as long as that mode is described. Stating the functions of the best mode software satisfies that description test. We have so held previously and we so hold today.
Where a patent does not disclose anything more than the functions of the software, any aspect of writing the code or the instructions used by the processor are irrelevant to considering infringement on the functions in the claims.

In fact, if the patents were of the sort that follow the general rule then, by introducing software facts, the lawyers, judges and jury members are wilfully introducing facts which have no bearing on the case.

I don't disagree with the Fonar opinion. I have explained why with my computer controlled gearbox example. The USPTO, the courts and the lawyers ignore the key phrase 'where software constitutes part of a best mode of carrying out an invention'.

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

[ Reply to This | Parent | # ]

When does "real world experience" become "expert knowledge"?
Authored by: dobbo on Thursday, September 27 2012 @ 08:58 AM EDT

This begs the question: Where is the dividing line between "real world experience" and "expertise"?

Programming skills are reasonably common, I would suggest. Many universities here in the UK have programming courses, and I suspect the same is true of most universities world wide. There are so many programmable devices these days that the ability to produce software engineers has never really met demand.

But that isn't really the whole story is it? Many people can cook, but not all are chiefs. There is more to programming that just being able to read code. One has to understand the environment that the code will run in to understand why things are done they way they are.

On one project I worked I developed a device driver to interface with some hardware we had built. The project used good programming techniques including peer review. During the review of my code the two coders that reviewed both stated that they didn't understand it, both had more experience and better academic qualifications that me, but neither had written a device driver before on Sun Solaris.

As we know from Hogan himself he employed a programmer to write code for him, so it is not unreasonable to assume that he does not consider himself to be a programmer - just someone who can read code. So I doubt if he is capable of making an expert evaluation of whether code on two different but similar platforms was were equivalent in terms of the algorithm they implement.

I've written Unix code for years. And I've worked in teams where the project has supported both the Unix and Windows platforms. Window's code still looks strange to me and is difficult to read. Even though Windows and Unix do the same job in very much the same way.

So if I were a juror trying to determine if two different implementations on two different platforms were similar enough for a patent infringement claim to be upheld I would not use source code similarities to do it.

[ Reply to This | Parent | # ]

Not everyone got hung up
Authored by: Anonymous on Thursday, September 27 2012 @ 09:46 AM EDT

What you just identified had been previously pointed to in other threads.

Not just the fact that he presented himself as an expert evidence presenter in the Court Room but also of the fact that the logic of his evidence was not equally applied:

    The prior art does not apply because you can't just drop the code into place
    It doesn't matter that you can't just drop the code into place, Samsung infringes
Plus a few other things - like the fact that the Law does not describe prior art application as Mr. Hogan seems to believe in my humble non-legal opinion - but the two above are directly related to the quote you noticed :)

RAS

[ Reply to This | Parent | # ]

Not to mention
Authored by: Anonymous on Thursday, September 27 2012 @ 04:45 PM EDT
The two methods being different would be a factor in a copyright case, but with
a patent, that can still be infringing.

So, as previously noted, he applied one standard to the prior art, but a
different standard to the actual product.

[ Reply to This | Parent | # ]

I don't trust anyone who uses the term 'methodology' n/t
Authored by: albert on Friday, September 28 2012 @ 12:53 PM EDT
{:-)>

[ Reply to This | Parent | # ]

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