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| Authored by: Tkilgore on Tuesday, October 16 2012 @ 01:38 PM EDT |
> The one bit of good news is that the early patents for knitting machines
can now
be renewed for machines that can do really complicated knitting.
> The legal test will be to get grandma to knit the same complicated pattern
and
to measure the proportion of dropped stitches and stitches in error.
> The claim construction of the term 'really complicated' will, of course,
be
carried out by a judge who cannot knit.
While I agree with your humor and also appreciate the more detailed references
to the legal precedents, this was not exactly my point.
A knitting machine is a knitting machine. A computer is a general purpose,
programmable machine, built upon some rather sophisticated technology. A general
purpose programmable machine is a general purpose programmable machine. A really
good general purpose programmable machine is one into which is built the ability
to do "really complicated stuff" in a reasonably small length of time.
It can do "really complicated stuff" which can be reduced, in
principle, to the speedy repetition of many steps, which if carried out by
humans might take a really long time. The comparison between the machine's speed
and the speed of people trying to solve the problem can then become a comparison
between what is possible to do and what is not possible to do.
The fact that this can occur is to me (and I think you agree) no reason to
entertain any patent for a "new" use of the machine to do what it was
designed to do in the first place. That which is patentable here is, if
anything, the invention of the machine, not the running of software upon it. The
machine is a physical creation. It required many technological advances to build
it. Many of those technological advances have been patented, and many companies
have made profits by manufacturing the machines, by licensing their patents on
those technological advances, and/or by selling the machines. It is a really
wonderful machine, in that it was designed to run software. But, again, that
which has made it possible to do the "really difficult stuff" on a
computer is the fact that the computer exists. Moreover, the better that the
machines become, the more often it will occur that the computer can do even more
"really difficult stuff" which was previously considered impossible to
carry out. Not that nobody could figure out how the "really difficult
stuff" would have to be done, but just that in fact nobody could do it
without the help of a fast machine.
Trying to put the matter in a very short way, the computer was designed and
built as a machine to do "really difficult stuff." The nature of said
"really difficult stuff" is further unspecified, being left up to the
user. Doing "really difficult stuff" on the computer consists of
nothing but using the computer for its designed and intended purpose. From this
perspective, the granting of any patent for doing this or that "really
difficult stuff on a computer" becomes a flight into nonsense.
The above analysis is why I said that the attempt to judge whether a patent on
computer software is valid by deciding whether it covers "doing some kind
of really difficult stuff on a computer," which humans could not feasibly
do if unaided by the computer, is even worse, in a way, than an attempt to
justify that some similar thing can be patented by claiming that "a new
machine" has been created when the software was loaded on it and run.
Again, the actual advance in science and technology was the development and
construction of the physical machine, not the act of putting software on a
machine which was built to run software.
Let's think of another example. Suppose I have some reason to want a solution to
a set of ten thousand simultaneous linear equations with ten thousand variables
in them. As a mathematician, I know perfectly well what needs to be done. But
unless it is a really special set of ten thousand equations it is clear that I
would not get the job done for a very long time, probably never. This is a very
good example of a problem which is not possible for one human being, or many
working together, to finish even though I and many others already know what
needs to be done. Thus, if I had to solve such a set of ten thousand linear
equations with ten thousand unknowns, I would be most grateful that a machine
has been invented which can carry out the many repetitive steps without breaking
a sweat. That machine is a wonderful invention. But should anyone who writes a
program to carry out that calculation be able to patent it just because it does
some "really difficult stuff on a computer"? Good grief, no. If a
court decides otherwise, that is really shocking.[ Reply to This | Parent | # ]
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