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| Authored by: Ian Al on Thursday, January 03 2013 @ 06:32 AM EST |
I agree. The Supreme Court made one almighty faux pas in Microsoft v. AT&T
when they claimed that software installed on a general purpose computer made it
a new machine.
They get so much right. Their cornerstone instruction to
determine whether an invention is patentable as a first step is
key.
TITLE 35 > PART II > CHAPTER 10 > Sec. 101.
Sec. 101. - Inventions patentable
Whoever
invents or discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may obtain a
patent therefor, subject to the conditions and requirements of this
title.
Software running on hardware may be employing a method or a
process or be instrumental in executing the same, but it can never be a method
or process in its own right. Methods and processes are things that people do.
They might use a computer running software as part of the method or the process,
but the computer running software is not a method or a process and cannot be
patented as such under § 101.
Software on its own is not patentable
subject matter as a machine, either. When software is executed on a machine, it
may or may not do something useful and it can be considered under § 101
as a newly invented, useful and patentable machine.
You
said"even the special purpose computer assembly would be the patent
equivalent of a standard nut or bolt"
Standard nut and bolt usage in a
machine that is patentable
does not mean the nut and bolt are patented by the
machine
patent.
Software usage in a machine that is patentable does
not mean
that the software is patented by the machine patent.
The
standard nuts and bolts are prior art, no new protection
on them, regardless
of how they are used.
The software is math, and cannot be patented
regardless of
how it is used.
I would add this detail from my
original:If the original electro-mechanical control mechanism was
patentable in its own right then it would be the precise control function
implementation that would be the patented new machine. Doing the precise control
function with a computer should be equally patentable.
The
software/software function would not be patentable, only the computer/electrical
interface/controlling function combination. Most automatic gearbox control
mechanisms will not be any more patentable than the gears they manipulate so
that even the special purpose computer assembly would be the patent equivalent
of a standard nut or bolt.
If the computer/electrical
interface/controlling function combination passes the § 101 test for
patentability in its own right, then award it a patent. However, it is unlikely
to pass the 'new and useful machine' test in its own right.
So, not
only do I agree with you, so does patent law.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, January 03 2013 @ 01:33 PM EST |
>> Standard nut and bolt usage in a machine that is patentable
does not mean the nut and bolt are patented by the machine
patent. <<
If the standard nut and bolt are still covered by a valid patent
the maker of the machine should license his usage.
>> The standard nuts and bolts are prior art, no new protection
on them, regardless of how they are used. <<
The algorithms used in these disputed methods are allegedly new,
not covered by prior art, and thus allegedly worthy of protection.
>> The software is math, and cannot be patented regardless of
how it is used.
I'm not saying that's how courts have ruled, I'm saying
that's how courts _should_ rule. <<
Yes, I totally agree. Oh the agony of the armchair judge...
[ Reply to This | Parent | # ]
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