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| Authored by: pem on Tuesday, January 01 2013 @ 08:51 PM EST |
A program is not patentable because code is not
patentable.
But some of us believe that a combination of hardware
and software can create a new machine, or perform a new process. I know you do
not, and believe it is a fact that this is not true, but to me, your "fact" is
still an opinion, and one that is not actually backed by solid logic. If a
computer+program logically performs the same task in the same fashion as
dedicated hardware, then if one is a patentable new machine, the other is an
equivalent machine.
What is patentable is the machine or the
process by which it operates. When you program a general purpose computer, you
don't make a new circuit and the process is still the instruction cycle. This is
the difference between software and hardware.
This is your
opinion. I know you believe it to be fact and believe you have explained it
thoroughly, but I disagree.
I would suppose the Verilog or VHDL
source code is not patentable either.
No, source is not
patentable. But it can be used in a patent as a concise description of that
which is patented.
What is patentable is the circuit, not the
functions of the circuit.
We certainly agree that this is
certainly how it should be. But too many patents have been issued and upheld on
results rather than implementation.
I don't see any problem with
leaving people free from performing the same functions using other means. Please
do not conflate the circuit with the algorithm which could be read in the source
code.
I do not. But I do conflate the circuit with an equivalent
execution running on a computer, and so (so far) do most of the
courts.
Neither the algorithm nor the program is patentable. See
above for what is patented.
But (IMO) a program running on a
computer that executes the same function as otherwise patentable hardware,
should equally be patentable.
Programmers don't conflate virtual
machine and physical machines. A virtual machine is software. Programmers
understand the difference between a simulated machine (ie virtual) from the real
thing. This is not a fiction. This is a metaphor.
A virtual
machine is simply one that is not implemented directly in hardware. Imaginary
is the opposite of real. Virtual is the opposite of physical.
No
it doesn't make the point moot. It ensures that the patent is written to a
practical application of the algorithm and not just the algorithm on a computer.
The claim must be written to the real invention and not to the fiction that a
new computer has been invented. It blocks people from patenting software when
there is no machine or process containing the software outside of the programmed
computer.
Nobody ever claims a new computer has been invented.
What they claim is that a special purpose machine has been
invented.
Which the Supreme Court backtracked on
in Diamond (foreshadowed by the dissent in Flook).
No they didn't
backtrack. They reaffirmed Benson and Flook in Diehr. They reaffirmed these
cases again in Bilski and Mayo. The rubber curing patent was allowed precisely
because there was more than just the calculations. It included the step of
curing the rubber.
There were physical steps in the earlier cases
too, though perhaps not pled well
enough.
The difference between an
abstract idea and the application of an idea is precisely the topic of the
debate. The insistence that actually carrying out the application is the
application of mathematics is one of the errors that leads to so many silly
software patents.
I don't think so.
Then what is
the CLS Bank v. Alice about? isn't this what we are
discussing?
This is a business case. Sure, you can cure a class
of silly patents with this distinction, but there are a lot more patents that
are just as silly, but that won't be cured.
If you
insist on driving this distinction home, then one likely outcome is that just
like "on a computer" became magical faerie patent pixie dust earlier, we could
easily wind up with similar magical faerie patent pixie dust that reads
something like "and for any application that could make use of a similar
calculation."
This happens only if you insist that actually
doing the calculation is "applied math". If you just accept the mathematical
truth, that doing the calculation is just math and the application is whatever
the number means in the real world then the "on a computer" magical pixie dust
doesn't happen.
Exactly. Which is why it will be replaced wih
the "and for any application that could make use of a similar calculation" pixie
dust.
It does. Just doing the calculation involves a physical
effect and this is just the mathematics. Mathematics is a language. This is like
English. Just uttering the English words or printing them is a physical effect
but it is not an application of English.
OK, I know you are
pedantic, but jeez. Can't we discuss _desired_ physical effects, the process of
which production would otherwise be patentable? Nobody's trying to patent using
a computer as a space heater.
You can describe mathematics with
mathematics. You can describe numbers with formulas. You can describe algorithms
with formulas. You can generate algorithms with other algorithms as is done in
lambda-calculus. There is no problem when we know these principles of
mathematics.
And you can describe lots of things with physics and
chemistry. The map is not the thing. The computer executing a program (even
faithfully) is not the program. But nor is it just the computer any more.
I know you and many others here disagree with this statement, but you have yet
to convince the world, or even all technical people.
We can argue
the printing process is different because it produces a different book. This is
the same argument as the new machine doctrine.
You keep going
back and forth between describing the press as an invention and the book. I get
confused. In any case, if someone said that reconfiguring a printing press to
print a new book created a new machine, I would say "fine, if that's what you
believe -- but it's not different enough to be protectable." So far, the courts
have ruled that a computer with a different software load, performing a new
task, sometimes _is_ different enough to be protectable.
Software
too is protected by copyrights.
The expression of the software is
protected by copyright. The functionality is expressly not protected by
copyright. Software is not the only category of things like this. A circuit
can be protected by patent. A "mask work" that describes a particular
implementation of the circuit on an integrated circuit is protected by
copyright. These cases are extremely similar -- description = copyrightable,
implementation = patentable.
And the molding analogy doesn't
apply. The molded item doesn't have a semantics.
Again, you
confuse by switching back and forth from the press to the book. Nobody (except
you) is claiming that software is like the book. But if you don't like my
molding analogy, try a 3D printer:
- Press = 3d printer
- ink and
paper = reel of plastic
- printed book = printed item
Aside
from the 3d printer and the reel of plastic, the thing that distinguishes what
kind of item rolls off the printer is pure math, just like pure math and ink and
paper define what kind of book gets printed. And the resultant item can easily
be patentable.
It is not disclosed and claimed in terms of its
semantics like a programmed computer or the printing press configured for a
specific book. You are comparing a meaningless physical invention with an
invention about the meaning of symbols. I am comparing two inventions involving
symbols and meanings. My analogy is the better one.
No, your
analogy is confusing as all get-out, because you keep swapping between
describing the press and describing the book when it suits you.
In
a configured printing press and a programmed computer. the invention is defined
in terms of symbols and their meanings. This is not the case with an injection
molding machine.
Again, which are you talking about? The book is
not an invention. Symbols are used in describing the patent for curing rubber,
as they are in all patents.
But in any case, another
practical difference in the process required to print one novel vs. another is
negligible, and requires no effort that any ordinary citizen would consider to
be "invention" but the practical difference between writing a word processor and
writing a space shuttle control program is rightly perceived to be huge.
Patent are not granted on the basis of effort. This is not one of
the patent law tests in 101, 102, 103 or 112. Besides there are a lot of efforts
in writing a new book.
For someone who claims to be so careful in
writing, you should be more careful in reading. "Effort," as used here, is
easily parsed to be "type of work," not "quantity of work." And you keep going
back and forth between the book and the press again.
The book is not an
invention. THe press is an invention. The 3D printer is an invention. What it
prints may also be an invention. There may be software used in the base
patentable 3D printer. A technique ("process") for printing a particularly
difficult structure may also be patented, and the implementation of that patent
will require software. The produced device, which may or may not be patented,
is fully described and distinguished from other possible outputs of the 3D
printer solely by the different software load used.
The difference
writing a word processor and a space shuttle program is that with a space
shuttle there is a larger invention which is flying the space shuttle. With a
word processor there is only the algorithm and the actions of a human typing on
a keyboard and pushing a mouse.
You just said the same thing I
did, after claiming I said something completely different and wrong. Way to go
with the straw men.
This difference is what makes the obligation
to claim the larger invention very relevant in my view. We can then ask whether
the larger invention is patentable. We don't magically conclude it is patentable
because it is "on a computer".
On that we agree. And apparently
have always agreed. Hope you don't think you're disagreing with me there.
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