I think your analysis omits two important points.
The
first one is that software actually manipulates the symbols. This
manipulation is mathematics. I read your argument about "where the rubber meet
the road" as that the mathematical computation is not
patentable<snip/>
The abacus is an example of
hardware, not the math or alogithm. Furthermore, referencing the bolded part
above, is it really actually the software that is manipulating the symbols, or
is any manipulation of symbols a result of changes in hardware state resulting
from the execution of the instructions contained in the aforementioned software.
What can be said about the actual manipulation of such symbols. My main point
is that the software is pure algorithm (unpatentable) whereas it's execution on
the hardware is the moment where any benefits of the algorithm become a part of
a beneficial experience to the operator.
Put another way, if the
software is merely a sequence of detailed instructions. It may only describes
symbol manipulations but cannot actually perform the manipulations without the
instructions being followed. That's the reason I contend that mathematics does
not "process" anything, it requires a medium by which its descriptions or
instructions can be performed or calculated.
The other
important point you omit is meanings. The article asks this
riddle:
Please take a pocket calculator. Now use it to compute 12+26.
The result should be 38. Now give some non mathematical meanings to the numbers,
say they are counts of apples. Use the calculator to compute 12 apples + 26
apples. The result should be 38 apples. Do you see a difference in the
calculator circuit? Here is the riddle. What kind of non mathematical meanings
must be given to the numbers to make a patent-eligible difference in the
calculator circuit?
This is the kind of question the Federal Circuit
is asking about computers. When I read case law about section 101 patentable
subject matter, I see the court analyze the meanings of the bits to determine
whether the invention is abstract. But at the same I see the court working from
a legal theory where a software patent is actually a hardware invention. Can't
they see this is a contradiction? This is the point of the riddle. The meanings
of the bits is not a hardware component of the machine and it is not influencing
the steps of the computation.
Agreed. Any meaning is
beyond the logic contained in the computing machine and possibly only present in
the intention of the software/instructions. That being said, if anyone
where to look that the hardware instructions in the software, any such meaning
would only be revealed to the most skillful analyst. The instructions
themselves don't have any real meaning to ordinary individuals. Hence the test
proposed by the federal court judge is likely to be the equivalent of asking an
irrelevant question. It does not help in identifying what is in-fact patentable
about software.
That being said, there is a difference I can point out
in the calculator example you quoted: the interpretation of the machine result.
As it relates to the operator and his experience executing the two algorithms.
In the later example, the operator understands the sum of something more
specific.
We can rewrite the riddle for an abacus if you
prefer. Software patents typically describe the invention in terms of the
meanings of the data. Your "where the rubber meet the road" argument fails
because meanings are absent from this view but they are present in the patent.
If software is truly purely algorithms and mathematics, it
certainly shouldn't be patentable. However, an understanding clearly exists
that software can instruct machines in ways that becomes useful to the operator,
hence the obvious presence of meanings in data. That such instructions can be
transformed into something more than the sum of it's parts, into something more
then a mathematical model as a result of its execution.
Any meaning the
software may have is a result of operator interpretation of its execution; the
software is merely a sequence of instructions that are executed by a machine,
regardless of any underlying meaning. The machine is not interested in the
symbols and manipulations of the symbols as the programmer may have intended.
It's only interested in the exact execution of the instructions. Furthermore,
those higher level symbols that are interpreted by the operator can only be his
interpretation of the machine state as a result of the software if and when
the software is executed, and that's when the meanings described by the
software become apparent to the operator and when the patent covers more then
just the math.
[ Reply to This | Parent | # ]
| 
