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Two Worlds of Software Patents | 217 comments | Create New Account
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Two Worlds of Software Patents
Authored by: Ian Al on Thursday, November 29 2012 @ 04:14 AM EST
From the report by Tkilgore on the Software Patent Conference in Santa Clara.
Next up was Michael Risch. His views are familiar to many of us from the previous discussion here, on Groklaw. He made the following points:

We need to apply existing laws more rigorously.

...

3. Obviousness. He mentions the Groklaw discussion and the view that the invention was the general-purpose programmable computer and not the programs which people write to run upon it, which therefore will all be in some fundamental sense obvious. He explicitly rejects this characterization, and says that the problem with obviousness is: What was the problem? That might be the biggest part of the problem. Because of this, he is unwilling to reject categorically the patenting of software.

My comment:

It is not clear to me what Risch's boundaries are for patentability. If patentability hinges upon non-obviousness due to having asked the right question to solve, are we not back again to patentability of ideas and concepts?
The Groklaw argument (on which I did not comment) was that the computer was prior art and not novel and that use of the computer was obvious. That left the issue of whether the software on the computer was also obvious.

Since the entire body of the software is algorithms out of the software language book, it is all obvious. The non-obvious aspects are the clever, new, abstract ideas that went into the solving of problems by the application of reasoning and logic. The skill of the art of writing source code is then used to encapsulate those non-obvious ideas. These ideas are not fixed in the medium of the computer. The algorithms are all that is fixed in a medium and are the expression of the results of the application of reasoning. The ideas, reasoning and logical thoughts are not protectable by either copyright or patent.

It could be that Tkilgore missed the point that Michael Risch made and that Risch was not proposing that it was legal to patent the solution to a problem. Then software patents would not be, as Richard Stallman put it, patents on thought, which amount to patents on the use of the human brain to reason and to solve problems by the application of reasoning.

Tkilgore was there and had an iron grip on the issues being discussed. I am fully confident that he did not misreport Michael Risch.

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

[ Reply to This | Parent | # ]

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