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| Authored by: Ian Al on Monday, January 14 2013 @ 03:12 AM EST |
There is no such thing as a software machine, so patents on software machines
are invalid.
However, functions of machines are patentable as long as one says in the patent,
what the 'best mode' of making the machine is.
Patent owners say that their invented functions are best implemented by writing
software code and putting symbols in a memory which are employed by the
processor circuits in the processing of data and operation of peripherals.
(Actually, when they are in the computer, they are signs. Signs are only symbols
if they are seen by a person as symbolising something and people cannot see
signs in a computer.)
They are not patented, software machines, they are patented, invented-function
machines made by writing software executed by a computer.
But, there's more. If your patented invention is a process or a method, then the
best mode can, again, be software producing signs in a computer. The process or
method (e.g. a business process) is not excluded by the wording of the Act
(Bilski).
Processes and methods can be described, but you cannot take a photograph of one
or put a table lamp on one. They are abstract inventions, but valid statutory
subject matter according to the Supreme Court. Only if the process or method is
shown, by case law, to be 'abstract ideas', 'math' or 'law of nature' (Mayo) or
by later sections to be obvious or prior art, is the patent invalidated
(Benson, Flook, Bilski).
If you use software as the best mode of implementing your patented process or
method, then any machine that incorporates symbol sets generated by any software
implementing the process or method, infringes on the patent (Apple v. Samsung).
Better still, if your method or process patents the writing of software then any
machine that incorporates any symbol sets generated by using the patented
software writing process or method, infringes on the patent (Oracle v. Google).
Do take Sun's great example to us all: only patent your invention on the
machines that you intend to monetise. Let users of other machines have free
access so that you can make your method an industry standard across many
platforms.
In general, it makes no sense to agonise over whether your invention is a
manufactured machine, process or method: just mirror all the claims so that the
patent claims all of them.
Don't worry, the courts gloss over this aspect of inventions. After all, it's a
great invention: who cares under which part of ยง101 it is statutory subject
matter? It's all inventions implemented by software. Why shouldn't it be worth
billions, irregardless?
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Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | Parent | # ]
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