|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
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
We need to apply existing laws more
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.
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
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
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.
was there and had an iron grip on the issues being discussed. I am fully
confident that he did not misreport Michael Risch.
Software Patents: It's the disclosed functions in the patent, stupid!
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