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Authored by: pem on Wednesday, January 02 2013 @ 12:40 AM EST |
I say programming a computer doesn't make a new
machine.
And I say it can in some
circumstances.
This is based on sound logic and on the principles
of computer science but I have not developed the argument in this thread. I have
provided a link where the evidence is presented.
I read that when
you wrote it. I don't buy it.
Where is the difference? You have
argued an expression in Verilog could easily be translated in a programming
language. Isn't this the expression of the algorithm computed by the circuit?
When this algorithm is given to Verilog a circuit is made. When this same
algorithm is given to a compiler software is made. This conflation you admit
making is not different from equating the algorithm with the circuit. There is
no difference that I can see.
The map is not the territory. The
program -- the description of the algorithm -- is not the execution of the
algorithm.
But (IMO) a program running on a computer
that executes the same function as otherwise patentable hardware, should equally
be patentable.
Why? The function is not
patentable.
This is the crux of the matter, isn't it? Just like
"plus a computer" shouldn't automatically make something patentable, neither
should it automatically make something unpatentable, unless the laws or
interpretation are changed.
Why the possibility of making one
patentable implementation imply that all implementations are
patentable?
It shouldn't do that, unless a patent on the
non-computer version of the machine likewise does the same
thing.
Nobody ever claims a new computer has been
invented. What they claim is that a special purpose machine has been invented.
Where is the difference? The words you use are different, their
meaning is the same. The courts have said a programmed computer is structurally
different from one which is not programmed. That special purpose machine is a
programmed computer. This is a new computer different from the unprogrammed
computer. So yes, people are arguing a new computer is being
made.
No, it's a machine, composed of executable software plus
the original computer. This does not make it a "new computer"; it makes it a
new something else.
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.
This is precisely the point I was
making. Please recall, I have used these cases as examples of mathematical
calculations that were held patent ineligible abstract mathematical ideas even
though they were physically executed. This was meant to be a pair of
counterexamples to your argument that actually doing the calculation is
patentable "applied math".
You say potato; I say backtrack. Most
observers agree that the standard appeared to change with Diamond. Call the
change what you will.
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.
Is there really such a pixie
dust?
Not yet that I know of. The point is, if you change the
standard in ways that are too subtle, they will easily be worked around by the
attorney.
Putting this language is equivalent to admitting the
claim is not on a specific application but on the mathematical calculation
itself.
Similar to the magic "plus a computer" language today,
no? I have no idea whether my predicted new pixie dust will fly, but I have
100% confidence something like it will be attempted if a decision comes down
that says that the math needs to be more securely attached to what happens in
the real world.
Then there is a long section where you seem lost
by my comparison of software with a book.
Yes, and I gave you
every opportunity to improve your analogy by using a 3D printer, but you appear
to have declined.
The functions of a computer is to manipulate
symbols, the bits, according to the rules of mathematics.
This is
simplistic. Yes, everything a computer does can be described by math. But if
it couldn't, we would invent new math that would describe it. This is because,
as you have pointed out elsewhere, math is a concise language.
The
problems which are solved are associated with the meanings of the numbers,
boolean values etc. I compare a computer with a printing press because they are
both devices which manipulate symbols with meanings.
In that
case, the words to be printed on the page are not analogous to the computer
program; they are analogous to the data manipulated by the program. The
printing press is analogous to the program, and in fact a printing press these
days will use programs which may even be patented.
The point of
the printing press analogy is to explain how semantical relationships work and
how they relate to the functions of software. In a book, the normal semantical
relationship is the ink represent letters and the letters have meaning. But a
typographer can reverse this relationship. He takes the novel as the series of
letter that must be printed and this described how the ink must be laid out on
paper.
That's not a reversal of any semantic relationship. It's
just a bidirectional transformation. The data is transformed into an alternate
representation by the printing press and then transformed back by your eyeball.
But one reason for my confusion is that you were opining on why the resultant
book wasn't patentable, and in this analogy, that would be like patenting the
compressed DVD movie, rather than the process of compressing the
movie.
Something similar occurs with software. The normal
semantical relationship is that the voltages represent the symbols, the bits,
and the bits represent numbers. Finally the numbers mean stuff like payroll data
or space shuttle speed and position.
Again, just data. With
multiple representations.
But in a patent this relationship is
reversed, like for a typographer. The functions of software are disclosed and
claimed. This is a recitation of the meaning of the data and the mathematical or
logical operations which must be applied. This is the meaning of the numbers and
boolean values. The programmer is supposed to write the corresponding code from
this description. Then the compiler will generate binary code. All this is
supposed to be a description of the process by which transistors are turned on
and off to manipulate voltages.
No, the transistors might be
listed in the "preferred embodiment" but are not required. You can make a
computer that uses compressed air and valves, rather than transistors and
voltages.
This whole thing is the digital equivalent of saying a
mathematical formula is the description of a process for pushing a pencil on
paper because the calculating procedure can be inferred from the formula. This
reverses the normal semantical relationship.
No it's not, and no
it doesn't.
Why does that matter? It is because this reversal of
the semantics is not acknowledged by the law. If we transpose to a printing
press to arguments made about computers, it it clear they are bogus. People
react like you do, saying the book is not an invention etc.
Your
semantics are utterly confused. The book is the output of the printing process,
which transformed data from one well-known representation into another
well-known representation using a well-known mapping function. I thought it was
me that is confused, but frankly, this is just goofy.
But when it
comes to a computer, the reversed relationship is treated like the normal one.
The algorithm is treated like a description of the computer similar to the laws
of physics. But it is not similar to the laws of physics. A physicist uses the
normal semantical relationship, from the ink to the symbols, from symbols to the
numbers and from the numbers to the real world.
Pure physics
aren't patentable, either. Whether using computers or other components,
engineers and others who write patents almost always start with a higher-level
description. Software patents are no different than hardware patents in this
respect.
A patent lawyer uses the reverse semantical relationship
from the real world to the numbers, then from the numbers to the bits and from
the bits to the voltages. This is why they are not the same. A programmer will
point to that difference by saying the computer manipulates the symbols. They
say software is math because this manipulation is math. It is not something
described by math like the laws of physics.
Not all programmers
say all software is math. This programmer says that math can usually be used to
accurately describe what happens in a computer, modulo a few pieces of nastiness
like the halting problem.
The point of the printing press parody
is to show that when we reverse the semantical relationship of a book, the same
new machine argument can be made.
Sorry, the book is the result
of a process, like the DVD. Parody doesn't work; isn't even
funny.
And it is bogus for both the printing press and the
computer for the same reason: the normal semantical relationship is not taken
into account. If we do take it into account in both cases we find there is no
patentable invention because the innovation is in the meaning of the symbols. It
is not in their physical representation.
In most patents, many
different physical representations can be used. I assure you that all patent
lawyers always try to keep thigs as abstract as possible, whatever the
field.
I argue that this is a problem with the current case law. A
lot of my points are much easier to understand if you keep in mind that in my
view the normal semantical relationship is the normal one and patent law uses
the reverse one. Logic flows very differently when this dichotomy is
acknowledged.
Now that I understand your view, I must completely
disagree.
As a final note I have seen you other post where you
clarify your beliefs. It is quite possible that there are more problems with
patent law than those I denounce. I am fine with people trying to fix these
problems. I just insist that the problem that I see are addressed as well.
Good luck with that. If it works, I'm all for it. But I doubt
you'll convince the right people, not that I'm one of them.
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