The new software in the washing machine implements a new patentable process
and not a new machine, anymore so than a new roll for a player piano or a new
cartridge for a game console would create a new machine.
Examples
A
process that may be an invention
A claim in an application provides for a
better method of washing clothes when using an existing washing machine. That
method is implemented through a computer program on a computer chip that is
inserted into the washing machine. The computer program controls the operation
of the washing machine. The washing machine is not materially altered in any way
to perform the invention.
The Commissioner considers that the actual
contribution is a new and improved way of operating a washing machine that gets
clothes cleaner and uses less electricity.
While the only thing that is
different about the washing machine is the computer program, the actual
contribution lies in the way in which the washing machine works (rather than in
the computer program per se). The computer program is only the way in which that
new method, with its resulting contribution, is implemented. The actual
contribution does not lie solely in it being a computer program. Accordingly,
the claim involves an invention that may be patented (namely, the washing
machine when using the new method of washing clothes).
And the
last sentence does appear to be attempting to convert a process patent running
on the washing machine into a new (washing) machine by adding software contrary
to the first sentence and maintaining the status quo for software patents.
With Beauregard
claims discredited lacking novelty in simply storing on a substrate (See P.
30 of the decision), the thinking appears to be to view software a a physical
component, which should fall afoul of printed matter doctrine relying on In Re:
Miller and In Re: Gulack, essentially also a point of novelty issue.
Unlike
a player piano or game console both producing presumably patent ineligible
signals, the washing machine producing cleaner laundry or clean laundry either
quicker or more efficiently relies on a lack of obviousness as well as the issue
presented in CLS Bank, that a person might manipulate the washing machine into
producing the same results should all the component process elements be present
in existing if varied washing machine cycles. Wherein the programming of such a
recombined function is no different than merely automating a largely mental
process.
A new machine should be harder to perceive than simply automating a
process on an existing machine.
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