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| Authored by: Anonymous on Friday, October 12 2012 @ 02:47 AM EDT |
To say a patent has been issued by the USPTO for a recipe or a contract does not
mean those things are patentable in the sense of having been legitimized by a
higher court and not running afoul of existing SCOTUS rulings (like Bilski).
The whole point of this discussion is that patents are being granted that should
not be (may not be) legitimate, so noticing that such patents may have been
granted in the past would be using circular arguments.[ Reply to This | Parent | # ]
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| Authored by: Ian Al on Friday, October 12 2012 @ 05:25 AM EDT |
Recipes are not patentable subject matter under US law.
What you may be referring to is the transformation or creation of new materials
which is explicitly included in U.S.C.35.
In Diehr, the 'recipe' for the production of precision, cured, rubber products
was validated even though it relied on a math algorithm. The process was
protected as a whole invention and even the math could not be used for the
purpose of making the rubber material without a licence. Use the math or recipe
in any other context and no licence is required because the patented
transformation process is not infringed.
Recipes are only covered if the result of using the materials and carrying out
the steps of the recipe is, of itself, a novel transformation of the materials
used. The USPTO has not found a cake that qualifies.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | Parent | # ]
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- Recipes - Authored by: Anonymous on Saturday, October 13 2012 @ 04:10 AM EDT
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| Authored by: ScaredDeveloper on Sunday, October 14 2012 @ 02:51 AM EDT |
>> Software is nothing like a contract. A contract involves an agreement
between two parties. A contract is a legally binding agreement that the parties
will follow, with specific financial consequences if it is broken.
Software is very much like a contract between the software engineer and the
computer. The software engineer suggests the type of input to the computer.
The computer reads the "contract" and follows instructions like
"if the input is A then do B else do C". That is just like a
contract. It is not "legally binding" but it is bound by the logic of
the computer language, which is pretty similar to a legally binding contract.
>> As far as I know, a specific new type of contract *could* be patented
as a business method patent, provided it was useful, novel and non-obvious. This
might be impossible for a contract, but (afaik) it is still patentable subject
matter.
Any newly-drafted contract could be considered useful, novel and non-obvious.
If a lawyer were to attempt to patent one, it might expose the hypocrisy of
patenting abstract ideas like software (although it probably wouldn't be
granted). Perhaps that would be a good avenue to try to get ALL software
patents invalidated. As an alternative, if it were granted, perhaps it could
make the lawyers feel the same pain that software engineers feel every time we
write code (am I innocently infringing on a patent or two, or 100, or
1,000,000)?
If presented with a problem "X", many software engineers will come up
with a similar solution. To allow someone to patent the solution for problem
"X", and disallow anyone else from solving that problem for 20 years
does not, ever, advance the state of the art. That was the purpose of patents -
to advance the state of the art, through a limited-time monopoly of a new
technology, that would one day become public domain, and available to everyone.
The problem is that software patents are useless when they revert to public
domain because "A" the patent doesn't properly enable the patent to be
replicated by someone skilled in the art (which it is supposed to do), and
"B", the problem is already solved by millions of other developers
(innocently, without knowledge of the patent) that makes the "public
domain" form of the patent useless.
That's not part of the bargain. Now Software patents (and business method
patents) are mainly "I discovered a new problem," and that is the
inventive step, not the solution. Patents were not meant to protect new
problems - they were meant to protect solutions. But the solution isn't even
the point anymore.
You also mentioned patenting a recipe. I suppose that is what a pharmaceutical
patent could be. After a ton of expensive experimentation and testing, a new
drug is created that would not ever be paid back if they were not patentable
(and the recipe transforms the ingredients into something useful). Is that the
case with software? No. The software patents that I have seen could be easily
and obviously implemented or "innocently infringed" by practically any
software engineer, because their manager asked them to solve a problem (that
neither party had any idea was patented). That hardly meets the non-obviousness
test. But apparently, that bar is very low.
Software was successfully written and sold for several decades, at extreme
profit levels (since duplicating software is extremely cheap), before anyone
even attempted to patent it. Were software patents necessary before software
could repay the engineering cost? No. So software patents are nothing like a
recipe.[ Reply to This | Parent | # ]
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