I'd agree that such a simple hardware design should fail 102 and/or 103
patent eligibility requirements. But then - in my humble opinion - patents are
too freely granted. Primarily I think Patent Lawyers have managed to regulate
novelty and non-obvious to being virtually non-existent tests. As we've heard
plenty of times, the catch-all response to any argument on obviousness seems to
be:
everything is obvious in hindsight
A catch-all
response used to mean "since everything is obvious in hindsight, nothing is
obvious in foresight". And - sadly - the USPTO and Courts appear to agree to
lesser or greater extent.
So - is the specific example patentable? I'd
agree for purposes of real-life patenting no. However, for purposes of drawing
a difference between the physical and the abstract - it is a very simple example
that everyone should be able to understand. And so for that purpose - I'd say
it's philosophically reasonable.
The software, however, should
immediately fail the basic 4 corner requirement of 101 patent
eligibility.
process - with the exception of abstract concepts applied of
course
machine
manufacture
composition of
matter
The simple example given to show what "software" is should be
crystal clear to all but the most resistent. There should be no doubt in
anyone's mind that software truly never exists in physical form. The closest
anyone can come to "pointing at the physical form of software" is to point at
the electricity flowing through the conductive material. Like pointing at the
observed result of a signal coming through a telegraph key.
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