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| Authored by: pem on Tuesday, January 01 2013 @ 03:05 PM EST |
"I think there are two competing issues here."
I think that significantly understates the number of competing issues :-)
"In the space shuttle example we have an invention outside of the
calculations. There is a space shuttle flying."
If we assume for a moment that there would be a patentable invention lurking
there if we built special hardware to control the shuttle, then there are three
possible cases if we use a computer instead of special hardware:
1) If the patent is disallowed solely because the computer is involved, then you
have a result where purpose-built hardware could be patented, yet repurposing a
generic computer to achieve the same task could not be. This would discourage
reuse and hardly be in the spirit of advancing the useful arts.
2) If the patentable invention doesn't include the software calculations, and
merely recites "and a computer to control the shuttle" then you have
the case where I can patent a computer controlling a space shuttle, and anybody
who installs a computer in a space shuttle is infringing. This is absurd on its
surface, yet many current computer patents are thusly absurd.
3) If the patentable invention _does_ include the calculations, then those
specific calculations are part of the invention, and possibly cannot be used in
any similar invention.
Occam's Razor would seem to indicate that (3) is the right answer, so no, you
don't actually have an invention "outside of the calculations"
especially since equivalent calculations would be required even without a
computer.
"Such a patent should include the step of actually flying the shuttle. Then
it is like the Diehr rubber curing patent, it claims something more than the
mathematical calculations. On the other hand if flying the shuttle is not
claimed then it is not necessary to fly the shuttle to infringe on the claim. So
I would say the need to fly objection stands only when the act of flying is
actually claimed."
Agreed.
"But we may also consider the abstraction mathematicians make when defining
the concept of mathematical algorithm. They ignore the real life limitations and
assume there is unlimited time to compute and unlimited space to write the
symbols while carrying out the task."
Sure. But those guys aren't working on the shuttle. Engineers are.
"Then the argument is not whether the computer is actually needed. It is
that the computation is a mathematical algorithm because in making that
determination the rules of mathematics say that the need for a computer to
overcome practical limitations must be ignored."
That's all well and good, but it's not real life or real engineering.
"If we insist that real-life limitations must be taken into consideration
for legal purposes we get the absurd result the addition of two numbers is not
abstract mathematics unless the numbers are small enough to be added by live
humans within reasonable time."
Addition of two known numbers is normally considered applied math, not abstract
math, regardless of the size of the numbers In any case, patents are supposed
to be about useful stuff. That would automatically place any legal
considerations about them in the "real-life" category, if those
considerations weren't already there for the sole reason that law itself
concerns itself with real-life situations. For example, judges are restricted
to hearing cases about "actual controversies"; not this pie-in-the-sky
discussion about how abstract two different sizes of numbers are.
"Adding numbers with a precision of one trillion digits is not abstract
mathematics by that standard but it clearly is."
The actual addition, with an actual numerical result, that is actually going to
be used, clearly falls into the applied math category, according to most
observers I know. But YMMV.
"This is an argument that works when the claim recites just the calculation
and the device used to compute. Put in a step to cure rubber or fly a shuttle
and we do more than the calculations."
Sure, and that's how we got the backdoor into software patents. It's easy to
see the slippery slope; as I mentioned before, if you can patent the physical
effects of the software in the entire system, then in many cases, you
effectively have a patent on the software. So, I'm sure the reasoning goes, why
not short-circuit the process and just allow patents on the software directly?
"The algorithm is mathematical but the claim as a whole covers more than
that."
Right. Because any useful patent is going to have real-world results.
Personally, I think that we should work on getting rid of bad patents, and also
that around 99.9% of all software patents are bad. But I also think that even
if we beat back the standard to something like in Diamond, we would still have
99.8% of patents that contain a computer and software being bad. So, in my
opinion, the huge focus on "software is math; math is abstract; therefore
software cannot be patented" is counterproductive.
I would love to be proven wrong, and to see all software patents wiped away with
the stroke of a pen; but I'm having a really hard time believing this is going
to happen.
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