I agree that it is unlikely that I could invent a CPU that is
novel, but if
somebody does invent a novel, non-obvious CPU; then the HDL
expression of the
new CPU would be software and perhaps worthy of patent
protection.
How is software patentable? MPEP 2106, I.
THE FOUR CATEGORIES OF STATUTORY SUBJECT MATTER , Non-limiting examples of
claims that are not directed to one of the statutory categories: "
vi. a
computer program per se, Gottschalk v. Benson, 409 U.S. at 72;".
A
summary of the four categories of invention, as they have been defined by the
courts, are:
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." (emphasis added) (quoting Cochrane
v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r Pat. 242 (1876));
NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316, 75 USPQ2d 1763,
___(Fed. Cir. 2005) ("A process is a series of acts." (quoting Minton v. Natl.
Ass’n. of Securities Dealers, 336 F.3d 1373, , 336 F.3d 1373, 1378, 67 USPQ2d
1614, ___ (Fed. Cir. 2003))). See also 35 U.S.C. 100(b); Bilski v. Kappos, 130
S. Ct. 3218, 95 USPQ2d 1001 (2010).
ii. Machine – a concrete thing,
consisting of parts, or of certain devices and combination of devices. Burr v.
Duryee, 68 U.S. (1 Wall.) 531, 570, 17 L. Ed. 650 (1863). This includes every
mechanical device or combination of mechanical powers and devices to perform
some function and produce a certain effect or result. Corning v. Burden, 56 U.S.
252, 267, 14 L. Ed. 683 (1854).
iii. Manufacture – an article produced
from raw or prepared materials by giving to these materials new forms,
qualities, properties, or combinations, whether by handlabor or by machinery.
Diamond v. Chakrabarty, 447 U.S. 303, 308, 206 USPQ 193, ___ (1980) (emphasis
added) (quoting Am. Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11, 51 S.
Ct. 328, 75 L. Ed. 801, 1931 (Dec. Comm'r Pat. 711 (1931))).
iv.
Composition of matter – all compositions of two or more substances and all
composite articles, whether they be the results of chemical union, or of
mechanical mixture, or whether they be gases, fluids, powders or solids, for
example. Chakrabarty, 447 U.S. at 308.
Software by
its self falls within none of the four statutory categories. It can be a
component of a machine as in embedded computer producing a certain effect or
result. Beauregard claims have fallen in disfavor ( Federal Circuit Rules Beauregard Claims are
Unpatentable, see Cybersource
Corp. v. Retail Decisions, Inc. (PDF, 129 KB)). Software on a substrate
isn't novel nor is it a process "an act, or a series of acts, performed upon the
subject-matter to be transformed and reduced to a different state or thing", the
subject matter being abstract (symbols), without being a component of a machine
not providing any fixation. Process claims require either a machine or
transformation, or the applicant shouldering the burden of proof of
eligibility.
By itself software should be vulnerable to the printed matter
doctrine (See the first sentence of SEMIOTICS 101:
TAKING THE PRINTED MATTER
DOCTRINE SERIOUSLY Kevin Emerson Collins, PDF 514KB, "Roughly formulated,
contemporary printed matter doctrine prevents the patenting of information
recorded on a substrate when the point of novelty of the invention resides in
the content of that information."). Your CPU design would certainly be afforded
copyright protection for those elements eligible. It's not an article of
manufacture, new composition of matter, a machine ("a concrete thing consisting
of parts or certain devices and combination of devices"), nor a composition of
matter.
An idea can be patented only when novel and useful ( MPEP 2107, II.
EXAMINATION GUIDELINES FOR THE UTILITY REQUIREMENT, “useful invention”
(“utility”) requirement, "(2) Ensure that the claims define statutory subject
matter (i.e., a process, machine, manufacture, composition of matter, or
improvement thereof)". Software by itself isn't useful. The CPU itself can be
novel and useful, a machine worthy of patent protection. The software can only
be a component.
Making the software eligible by itself would have various
deleterious effects. An analyzed, elaborated and simulated VHDL model is not a
concrete thing. Running it as a virtual machine (a simulation) is not a
concrete thing. Should we be vulnerable to patents in Second Life?
Protecting software in and
of itself is the domain either of copyright or trade secret.
Sorry
if it was not clear. I *AM* directly equating the software HDL with the
physical
CPU.
This is called semiosis, in
semiotics merging the sign with the thing it signifies, a form of word magic
equating the abstract (the sign, your software) with something concrete (the
CPU). I'm a CPU designer, a chip guy, a VHDL guru and write CAD tools as a
hobby. To successfully produce silicon we require semiosis, that our
specification, behavioral and structural models and implementation prove
equivalent. I don't have a working chip without doing so, failing formal proof
covering device physics. With FPGAs we can skip some of the intermediate
equivalency proofs because of low 'manufacturing' risk.
Your model
description describes behavior and isn't the behavior itself. A reason for not
using UML to describe patents, being objected oriented and enabling merging of
sign and referent in a manner worthy of Plato's 'the name is the thing'. Names
are abstracts and not concrete.
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