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??
Authored by: myNym on Wednesday, January 02 2013 @ 11:16 PM EST
Seems here that you are perhaps offering conjecture as to how
a court might rule.

But as to how a court _should_ rule, software is math,
software running in an emulator is a math algorithm executing
with its inputs and outputs interacting solely with another
math algorithm, with no real-world connection, no larger
system it is a part of. How could that be patentable?

[ Reply to This | Parent | # ]

Claims
Authored by: Ian Al on Thursday, January 03 2013 @ 05:59 AM EST
The answers to your questions is dependent on how the claims are written. For the gearbox example, does the claim include a limitation that the software must be used to control an actual gearbox? If so running the software with a simulator would not infringe. But if there is no such limitation then the simulator may infringe.
I disagree, because § 101 says:
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
A patent on a gearbox machine does not extend to a simulation because the simulation is not the invented useful machine. For one thing, it does not make an auto move. Don't take my word for it: it's what you wrote in one of your early articles!

OpenSourceFTW commented:
The analogies we are using are specialized hardware, not general purpose hardware.

If I take the software used to control that gearbox, what else could I do with it? Not much, other than control another gearbox, so there is really no way to use that software without infringing upon a patent (because you would have to drive a gearbox, which is covered in the patent).

However, what happens when we are talking about a general purpose machine? What if, as myNym stated in the other thread, we took gearbox control software and ran it in a simulator on a general purpose computer? Would this infringe the patent?

See, it's hard to visualize, because the example is so specialized, so a simulator is the best I can come up with.
Taking the control software, or the control software and a simulation of the gearbox, we have to evaluate what it constitutes as a patentable thingy under § 101. It is not a machine (the computer is the machine). It is not a new and useful method or a process (that is a way of doing something and not an object, system or machine). I refuse to consider it as a transformation!

Software and hardware always have to be used in conjunction and patenting software cannot be patenting a method or a process. A method or a process may be executed in part or in its entirety by running software on hardware, but the software is not the method or the process and cannot legally be patented as such.

So, to legally patent software, it has to be in conjunction with hardware as a machine patent. § 101 says it has to be a 'new and useful' machine. If we agree with the Supreme Court that a general purpose computer is not a new machine for the purpose of patent law, then, either the software on the general purpose computer has to make it a new machine as erroneously opined in Microsoft v. AT&T, or there has to be newly invented, specialised hardware.

So, when OpenSourceFTW says 'the analogies we are using are specialized hardware, not general purpose hardware' he has hit the nail on the head. Only newly-invented, useful hardware meets the requirement of § 101 to be a 'new and useful' machine and thereby patentable subject matter.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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