Yes the issue is more complex, but there are places where I don't agree with
your analysis.
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.
This is conflating the algorithm with the device with
computes it. It is like conflating a novel with a stack of paper covered with
ink.
I am perfectly fine with patenting a new a nonobvious circuit for carry
out the calculation as long a the circuit is patented. The algorithm is not the
circuit and people should be free to do the calculation through different means.
Also programming a computer doesn't make a new machine. This is a legal
fiction.
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.
Points 2 and 3
make sense to me.
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.
This conclusion doesn't follow from point 3.
The calculations are part of the inventions. They are not the whole invention.
The calculations taken in isolation are the the invention. In the rubber curing
example, you still have to cure the rubber. In the space shuttle example you
still have to fly it.
Addition of two known numbers is normally
considered applied math, not abstract
math, regardless of the size of the
numbers
This is wrong. Besides the patents in Benson and Flook
were patents on mathematical algorithms where the calculation is actually
carried out. So you can have abstract math in the Surpreme Court sense when
actual calculations are done.
As a general note, my discussion on the
real-life limitations is to clarify what is a mathematical algorithm in the
sense mathematicians give to the word. This knowledge helps knowing when a claim
is written to a mathematical algorithm as opposed to an application of the
algorithms.
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.
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?
This is because it takes more than some physical effects
to have an application of mathematics. Actually carrying out the calculation
involves a physical effect but this is not sufficient to have an application of
mathematics. We need to take into consideration that mathematics is a language.
We need to distinguish a manipulation of the language from an application of the
language.
To illustrate this point, we may write a parody of the
"programming a new computer makes a new machine" using a printing press. A
printing press configured to print a book is a different printing press than one
without such a configuration. One can lay out ink on paper to make a book while
the other cannot. A book with ink laid out in different manner are physically
different books. And printing presses configured to print different books
perform different functions, they make different articles of manufacture.
The printing process is useful, it makes a physical article of manufacture.
A novel is the list of letters that specifies how the ink must be laid out. A
patentee is free to describe his invention that way he chooses. He may use the
text of a novel to do so.
I guess you get the point. In this example the
invention is the novel. It is not a book, a printing press or a printing
process. But we may play with words and use the fact we need a physical support
to record the novel to try to claim it.
The problem is the Federal Circuit
has not recognized the role of the semantics of symbols (bits) in software. One
need to recognizes the role of semantics to be able to draw a meaningful
line.
Back to the shuttle example, the engineers have invented something
other than a programmed computer. There is a shuttle flying. But if the act of
computing itself is considered a patentable physical effect than how is that
different from patenting a novel in the manner I have described? I know the law
makes a difference, but my question is why? This seems an arbitrary decision to
me.
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