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| Authored by: Anonymous on Wednesday, January 09 2013 @ 10:16 AM EST |
The software HDL definition of a CPU creates a physical thing in
the same way that a software procedural program creates an executable
program.
Sorry, I disagree. While you can use the HDL to simulate
the CPU, it does not create the physical thing. The processes, such as the ones
that create wafer, are responsible for creating the CPU.
[snip] the
software HDL that serves as its construction blueprint is the normal means of
designing it.
No dispute there - blueprints are used in many fields
as a set of instructions to create the physical inventions.
the HDL
representation is NOT the CPU and hence not patentable is true - but only in the
sense that the machine drawings for an invention are not patented, the patent
only applies to the thing that is constructed from the
drawings
Bingo!!! We have a winner!!! It's the computer that is
patentable not the abstract thing we call software that we use to "instruct" the
computer in the form of a pattern of electrical signals!
Asserting
that Software is abstract and hence not the means of defining the sorts of
inventions that patents should protect is naive when Software is the means of
defining all high-density integrated circuits, almost all PCBs, buildings,
planes and etcetera.
Now the conflation begins: You're basically
stating:
Since the physical invention is patentable, the blueprint on the
physical invention is patentable!
But you've already said "drawings for an
invention are not patentable"! You have a conundrum in your logic to resolve.
Drawings can not both logically be patentable and not patentable - pick
one!
RAS[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Wednesday, January 09 2013 @ 10:22 AM EST |
it is not an argument that patent law should never apply to this
industry.
We're not saying patents shouldn't apply - depending of
course on what you mean by "industry"! If you're talking "computing industry" -
absolutely we are not saying patents should not apply. If you are talking
"software industry" - absolutely I (and others) are saying patents should not
apply.
We keep saying the physical invention (cpu, fpga, computer,
monitor, etc) is patentable. We keep saying the abstract (the blueprint) is not
patentable!
There is no reason that both forms of protection could
not be applied to the same work by the inventor
Actually, there
is.
Copyrights are supposed to protect the specific "expression" of an idea.
Releasing the idea itself to the public.
To quote section 102(a) of the Copyright
Act:
Copyright protection subsists, in accordance with this
title, in original works of authorship fixed in any tangible medium of
expression [snip] from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device.
Copyright protects the specific abstract
expression!
Patents are supposed to protect the specific physical
implementation of an idea!
And that is where - in my humble opinion - we
lost our way. Why "physical implentation"? Because abstract concepts - like
communication - are supposed to be excluded.
Software is patentable
because, IIRC, the Supremes have ruled that software running on a computer can
create a machine for the purposes of section ii above.
In my humble
opinion this is because the Supremes haven't quite yet figured out that software
never has a physical form and all people are actually patenting are the
particular pattern of electrical current flowing through the computer which
humans interpret to mean something more then just electrical current.
But
that's why this challenge: an attempt to educate through asking a different
question.
Specific expression vs specific implementation. If you can
patent the abstract expression, why can't you copyright the physical
implementation? Copyrights are supposed to apply to the blueprints while
patents are supposed to apply to the physical creation!
RAS[ Reply to This | Parent | # ]
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| Authored by: dio gratia on Wednesday, January 09 2013 @ 05:41 PM EST |
Quoting you:
Software is patentable because, IIRC, the
Supremes have ruled that software running on a computer can create
a machine for the purposes of section ii above. It a bit strange to refer to it
in this discussion without acknowledging that your interpretation of it does not
agree with the authoritative one.
Perhaps you'd like to
reference your authoritative case? See As Supreme Court Software
Patent Ban Turns 40, It's Time To Stop Ignoring It:
Beginning
in 1989, the Federal Circuit began handing down a series of decisions that made
it easier to get software patents. By the end of the 1990s, all practical limits
to patents on software had been dismantled, sparking the software patent arms
race that continues to this day.
It was the CAFC that declared
software creates a new machine. It has never been tested at the Supreme Court.
This was Gottschalk v. Benson.
And the next paragraph:
Yet
theoretically, the Supreme Court’s 1972 ruling is still a binding precedent. The
Supreme Court re-iterated its rule against patenting software in 1978. The
Supreme Court did uphold a patent on a software-controlled rubber-curing machine
in 1981, but its ruling emphasized that this was because the patent covered a
physical machine that happened to have a software component, rather than
claiming a software technique by itself.
This was Diamond v. Diehr. You could note that it's no patentee's
interest to appeal an affirmation from the CAFC that there patent is held valid
by that court. The CAFC is backing off their position of support, fof Beauregard claims which
came about because the then head of the Patent Office withdrew the patent
office's printed matter objection allowing patentability of software on a
substrate (53 F.3d 1583, 35 U.S.P.Q.2d (BNA) 1383 (Fed. Cir.
1995)).
Further the CAFC as noted earlier in this exchange disallows second
by disallowing Beauregard claims (Again see Federal Circuit Rules Beauregard Claims are
Unpatentable and Cybersource
Corp. v. Retail Decisions, Inc., PDF, 129 KB). Also see
Digital-Vending Services International, LLC v. The University of Phoenix,
Inc. (PDF, 143KB),
Disavowal of Claim Scope and Beauregard Method Claims, wherein the important
thing being Beauregard claims are method claims (software providing means)
putting such patent claims at the mercy of The Four Categories
of Statutory Subject Matter (i. Process – an act, or a series of acts or
steps. See Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, ___ (1972) ("A
process is a mode of treatment of certain materials to produce a given result.
It is an act, or a series of acts, performed upon the subject-matter to be
transformed and reduced to a different state or thing."). Your software as a
process needs to treat something material transforming it to a different state
or thing. When promoting claims as both process claims and apparatus claims
(Beauregard claims) both are now interpreted as process claims. Note this has
Supreme Court support dating back over 140 years ( Cochrane v.
Deener, 94 U. S. 780, 787-788 (1877)) as noted in Diamond v. Diehr.
Something has to be transformed.
Further support for software patents is a
CAFC invention, although in Bilski you can find Justice Breyers and Roberts
parroting CAFC support in Bilski (for the minority, see Supremes wrestle with business method, software
patents, whereupon:
But Justice Breyer objected that this
reasoning would undermine the government's goal of limiting business method
patents. "All you do is you get somebody who knows computers, and you turn every
business patent into a setting of switches on the machine because there are no
businesses that don't use those machines."
Justice Roberts asked about
another hypothetical software case: whether you could patent the process of
using a calculator to compute "the historical averages of oil consumption over a
certain period and divide it by 2." Stewart responded by drawing a distinction
between a calculator with "preexisting functionality" to "crunch numbers" and a
computer that "will be programmed with new software" and "given functionality it
didn't have before." We'll let readers judge for themselves whether this
distinction makes any sense.
Bilski was narrowed to avoid the
issue, something called first principles, which in this case is §101 and
statutory patent subject matter along with the judicial exceptions.
The
heart of the CAFC support for software making a new machine still requires a
machine in the first place, see In Re Alappat (33 F.3d 1526, 31 USPQ2d 1545 (1994). Note
there is a distinction you can make between general purpose computers and
embedded computing which your CPU programming of an FPGA embraces. It still
boils down to the software itself not being protected by patent, and you could
note reading up on Bilski that Justice Breyer was arguing against slapping down
Bilski because of (as Richard Stallman says) clever patent practitioners simply
restating things as new machines without physical change - which doesn't occur
on a general purpose computer and in cloud computing the particular machine may
not be identifiable.
Personally I find it takes to much effort to try to
dissuade you from using self reinforcing argumento. You could note your
argument has aligned with mine, you've switched from software having patent
protection of itself to new machine.
Your statement:
As I said,
abstractions are powerful things. Requiring all patents to be expressed in
concrete terms is an interesting, but I fear flawed, way of handicapping patent
lawyers.
Smearing the distinction between the name of a process
(method) and it's results is the issue. It lends it self to considering
abstracts as concrete while software in and of itself isn't concrete, nor is the
'document' being bounced in Apple's '381 patent, comprised solely of transitory
signals on a touch screen display.
See Some New Ideas About Law Zechariah Chafee, Jr., Professor of
Law at Harvard Law School, delivered before the Indiana State Bar Association at
Lake Wawasee, Indiana, July 10, 1936 (PDF, 1.2 MB) at 13:
On
the basis of Piaget's Studies in Child Psychology, Mr. Frank gives us other
parallels between lawyers and children. Children are egocentric, wishful
thinkers, and believe in word magic. The name is the thing, for lawyers as for
Plato, who also had a childish mind.
In reality there is no certainty
about law, the judges merely decide as they want.
The basic issue
is removing whimsey as perpetual support through case law citations and getting
back to first principles. Software of itself is not patent subject matter (per
se). It can be used as a component to create a new machine when it doesn't
conflict with §101 as Justice Breyer pointed out, caused by accepting abstract
results (the process of which we call algorithms), also demonstrated by business
patents.
BTW, you said:
A software engineering team that is
building a flight simulator for windows will not apply the same level of testing
as a software team that is developing the software for micro-controllers in a
fighter jet. In particular, mathematical models of software correctness were
applied to the avionics field a long time ago... This seems to be another way in
which HDL design of digital circuits is analogous to the development of
procedural software to run on computers.
I've worked in both
fields (Silicon Graphics and Loral Rolm). VHDL for instance is used to support
formal proofs of surety, though there are likely limits on the language
constructs used. We generally avoid formal proofs whenever possible as being too
expensive, counting on equivalence instead - using agreed upon results as proof.
The practice can avoid billions of dollars in cost for instance when
implementing replacements for obsolete computers used in the command and control
of nuclear weapons. Now done on PC's by the way, the camel's nose being
described as accepting equivalence to the discrete event level for the CPU to
known behaviors captured from a certified machine through 100% coverage
diagnostics. Once we can certify the results by passing the diagnostics (test
vectors and results) we can prove equivalence with a virtual machine, too. Now
the question is, do those PCs require ECC memory? What about host operating
system issues conflicting with accurate execution of the virtual machine?
An HDL description is a program that runs on a virtual machine (a simulator), or
from time to time specialized hardware as a particular machine. It's software
and when combined with a virtual machine doesn't result in something patentable
lacking transformation of something physical, which can be accomplished when
embedded in an FPGA that transforms something physical or creates an effect
necessary to a process. These things don't occur in a simulation.
Your HDL
description is translated to a physical layer description, which in the case of
an FPGA is typically a list of switch settings and look up table contents.
There are two classes of FPGA devices, volatile and non-volatile, the
distinction being whether or not they need to be reconfigured after power has
been removed and reapplied. Some of those switch settings apply signals to and
from particular device pins allowing real world effect, which could be
simulated. There is a requirement the HDL behavior or structural simulation
match the physical implementation (the programmed FPGA) tested through
equivalence.
Conveying the analogy to software, a simulation would be what
happens on a general purpose computer, where no specific I/O provides unique
transformation causing real world effect, versus embedded computing applications
when your say programmed FPGA is for instance a vocoder, where it is used to
remove redundancy in speech communications.
The problem arises that general
purpose computers also routinely contain the I/O hardware to perform
identically. The question then arises as to how many particular machines can be
present in the same CPU of the general purpose computer at the same time? After
all there's something like Skype, Google's Voice and Video Chat, Apple's iChat,
... These all perform both voice and video compression and decompression
simultaneously through preemptive multitasking, general purpose computers also
typically supporting video cameras. When is a computer a particular enough
machine? Accepting multitasking it to accept they are virtual machines and you
are actually again dealing with processes in the manner of Cybersource v. Retail
Decisions. General purpose computers as particular machines is bound to fall
sooner or latter. It's likely you FPGA as a CPU won't unless we see programmed
hardware strongly embrace virtual hardware in the manner of reconfigurable
computing allowing multitasking. [ Reply to This | Parent | # ]
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| Authored by: dio gratia on Wednesday, January 09 2013 @ 05:52 PM EST |
You said:
Patents are a device constructed to reduce the need for
trade-secrets; as trade secrets do not efficiently contribute to the benefit of
society as a whole.
The need for trade-secrets to protect HDL software is a
strong argument that patent law is incorrectly formulated for this industry; it
is not an argument that patent law should never apply to this industry.
Consider IEEE 1076-2008, 24.1 Protect tool
directives:
Protect tool directives14 allow exchange of
VHDL descriptions in which portions are encrypted. This allows an author of a
VHDL description to provide the description to one or more users in such a way
that the users’ tools can process the description, but the text of the
description is not disclosed to the users.
If a VHDL description
(software) could be protected in and of itself by patent there would be no
requirement to treat it as a trade secret.
The issue isn't the lack of
patent protection for abstracts, rather that software is abstract. Circular
argument doesn't aid your case. [ Reply to This | Parent | # ]
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