You are also taking things that were previously limited in some way (a board is not elastic, etc), and assembling them into a new thing that is not so limited.
I think you have this part of it backwards. The fact that you can assemble a board and some metal into a mouse trap shows that the component parts weren't limited.
Computers are the opposite. They're extremely limited -- they can't physically do anything, they can only perform calculations. Software is capable of nothing but specifying what calculations to perform.
Here's a great example of the absurdity that occurs when you allow the narrow thing computers do to be the subject of a patent. Suppose that the text of a particular software patent consists of source code implementing the invention. If software can be patented then that patent would infringe itself. All you would need to constitute an embodiment of the "invention" would be a prior art general purpose computer and the patent's text. Imagine an infringement suit against the Patent Office (or Google Patents) for storing the patent's text on a computer capable of executing it.
This is so completely absurd I'm almost speechless. You have so completely missed how the world works I can't even fathom it. The more arguments I read, the more delusional people sound.
People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable.
Furthermore, people seem to think that just because a computer program can be described as a sequence of mathematical steps that it is therefore a mathematical algorithm and shouldn't be patentable. Algorithms have no effect on the world, they do not improve anything in a tangible way, but software absolutely does (and it's why you can read this now!) and it is the processes that lead to producing these useful effects that is patentable. I can't patent an algorithm without specifying why it is useful to the population at large.
Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. The claims are usually directed to a system which actually does perform the steps in the process, not one which is capable of it (therefore allowing them to exclude competitors who make their own implementation of some software process that has been patented and attempt to make money from it).
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People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable."
I think you missed the point, actually.
They have argued, and precedent until yesterday was:
It is patentable because it is implemented on a computer, because it "transforms the computer" into a "specific device". IE that the computer, programmed, makes something unpatentable, patentable.
"Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. "
As a patent attorney, having fought software patents for many many years now, i'm just going to say this is completely and totally false. People patent both computers capable of things, and computer implemented inventions. To think otherwise just means you've not read enough patents :)
It's one thing to patent a specific arrangement of a spring, board, and wire to build a mouse trap it's another to patent ALL arrangements of a springs, boards, and or wire to build any device that can possibly trap a mouse. The first is an invention the second is the abstract idea of a mouse trap.
The problem is software patents have long used the second approach. Rather than patenting a process they attempt to patent the result. And this is where the fundamental difference between software and physical reality shows up. If your building something then 'optimal' solutions are great, but if your building software anything that works is probably good enough.
"
People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable."
I think you missed the point, actually.
They have argued, and precedent until yesterday was:
It is patentable because it is implemented on a computer, because it "transforms the computer" into a "specific device". IE that the computer, programmed, makes something unpatentable, patentable.
"Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. "
As a patent attorney, having fought software patents for many many years now, i'm just going to say this is completely and totally false.
Computers are the opposite. They're extremely limited -- they can't physically do anything, they can only perform calculations. Software is capable of nothing but specifying what calculations to perform.
I think this is the heart of your argument here. (Correct me if I'm wrong.)
The problem is that in terms of calculation, computers are not limited. In fact, that was proven not once, but twice, in 1939. Any computation that can be performed can be done with any general-purpose computer. The Church-Turing Thesis proves that that computer need not even be specialized: it only requires the ability to manipulate symbols deterministically in some general manner.
What these patents cover is, in fact, only those computations with the aid of a general-purpose computer, and the only reason those patents have been allowed is by this fallacious argument that a general-purpose computer somehow becomes a special-purpose computer when it is programmed. This is not how computers work. A general-purpose computer does not become special-purpose merely by assigning some numbers to a pool of memory any more than an FPGA becomes an ASIC by uploading a ROM image. It is still a general-purpose computer, and its nature does not change.
If, perhaps, by programming a computer, the program magically became a new, immutable physical wiring, your argument might have merit. But we do not live in a world of magic.
The problem is that in terms of calculation, computers are not limited.
If you exclude all the things computers can't do then they can do everything else. That's just begging the question. There is no way for a software program to allow a general purpose computer to trap a mouse, or generate electricity, or convert raw materials into manufactured goods etc.
I agree with your first part, but the last part is incorrect.
>If software can be patented then that patent would infringe itself.
To infringe a patent, you must make, use or sell a product incorporating the invention. A patent by itself does none of those and hence cannot infringe anything.
To infringe a patent, you must make, use or sell a product incorporating the invention. A patent by itself does none of those and hence cannot infringe anything.
How are you intending to distinguish program source code in an interpreted language incorporated into the body of a patent specification from a software product consisting entirely of that same code?
A patent is essentially a document with just two purposes: 1) instructing a practitioner how to reconstruct the claimed invention, and 2) defining the legal scope of ownership for the claimed invention. By itself, it does nothing else, and thus does not constitute making, using, or selling.
Now if somebody other than the patent-holder takes the source, compiles it and uses and / or distributes it without license, they are infringing. Note that by taking and compiling the source, they are essentially just fulfilling the first intended purpose of the patent: instruction. Where they run afoul is the second purpose.
It seems like the distinction you're trying to draw is between source code and a compiled program, but that doesn't apply to interpreted languages. There is no compiled program, the source code is the program. And you can effectively convert any compiled language into an interpreted language just by associating its file extension with a two line shell script that invokes the compiler and executes the output. Trying to differentiate one from the other on that basis is frivolous.
So I still don't see how you're trying to refute the conclusion that a software patent containing code covered by its claims would infringe itself. You couldn't reproduce or distribute the patent without reproducing or distributing the program.
Obviously a patent sitting on a desk doesn't self-execute, but neither does a program on a disk sitting on the same desk. I see no relevant difference between one and the other any more than there is between a USB stick and a CD.
Compiled versus interpreted has no bearing on this. The patent and the source code in it exists only to instruct, and by itself the invention claimed is neither made, sold or used and has no commercial effect. Unless an unlicensed third party does anything with it, it is not being made, used or sold, and so cannot infringe. Software that is lying unused and unexecuted on some computer readable media is still infringing if it was created without license because the act of copying code on to or distributing that media counts as "making" or "selling". I I cannot imagine under what interpretation a patent itself could count as an "unlicensed third party".
Are you proposing that if my patent containing source code is published by Google on Google Patents, I can sue them for infringing it because they are an "unlicensed third party"?
I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.
Let me take a stab, though. Keep in mind that the text of the code does absolutely nothing until it is interpreted or compiled. Now, say your code implements a way to detect porn in an image, which is what your patent claims. By publishing the code in the patent, is Google Patents, or heck even the USPTO, making, using or selling "porn detection in images"?
A simple answer to this question is the answer to the question, "Can I submit an image to USPTO/Google Patents and get a determination of whether the image contains porn?"
Depending on how you look at it computers may perform physical operations based on instructions; which may amount to calculations. The physical computer vs. the conceptual computer.
Comments
I think you have this part of it backwards. The fact that you can assemble a board and some metal into a mouse trap shows that the component parts weren't limited.
Computers are the opposite. They're extremely limited -- they can't physically do anything, they can only perform calculations. Software is capable of nothing but specifying what calculations to perform.
Here's a great example of the absurdity that occurs when you allow the narrow thing computers do to be the subject of a patent. Suppose that the text of a particular software patent consists of source code implementing the invention. If software can be patented then that patent would infringe itself. All you would need to constitute an embodiment of the "invention" would be a prior art general purpose computer and the patent's text. Imagine an infringement suit against the Patent Office (or Google Patents) for storing the patent's text on a computer capable of executing it.
This is so completely absurd I'm almost speechless. You have so completely missed how the world works I can't even fathom it. The more arguments I read, the more delusional people sound.
People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable.
Furthermore, people seem to think that just because a computer program can be described as a sequence of mathematical steps that it is therefore a mathematical algorithm and shouldn't be patentable. Algorithms have no effect on the world, they do not improve anything in a tangible way, but software absolutely does (and it's why you can read this now!) and it is the processes that lead to producing these useful effects that is patentable. I can't patent an algorithm without specifying why it is useful to the population at large.
Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. The claims are usually directed to a system which actually does perform the steps in the process, not one which is capable of it (therefore allowing them to exclude competitors who make their own implementation of some software process that has been patented and attempt to make money from it).
" People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable."
I think you missed the point, actually.
They have argued, and precedent until yesterday was: It is patentable because it is implemented on a computer, because it "transforms the computer" into a "specific device". IE that the computer, programmed, makes something unpatentable, patentable.
"Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. "
As a patent attorney, having fought software patents for many many years now, i'm just going to say this is completely and totally false. People patent both computers capable of things, and computer implemented inventions. To think otherwise just means you've not read enough patents :)
It's one thing to patent a specific arrangement of a spring, board, and wire to build a mouse trap it's another to patent ALL arrangements of a springs, boards, and or wire to build any device that can possibly trap a mouse. The first is an invention the second is the abstract idea of a mouse trap.
The problem is software patents have long used the second approach. Rather than patenting a process they attempt to patent the result. And this is where the fundamental difference between software and physical reality shows up. If your building something then 'optimal' solutions are great, but if your building software anything that works is probably good enough.
" People are not getting patents for some sequence of calculations, they're getting patents for producing a useful, new effect on the world. Yes all computers are universal in what they can compute, but I see no reason why coming up with a new, greatly improved and economically useful way of using such a restricted machine should not be patentable."
I think you missed the point, actually.
They have argued, and precedent until yesterday was: It is patentable because it is implemented on a computer, because it "transforms the computer" into a "specific device". IE that the computer, programmed, makes something unpatentable, patentable.
"Finally, people seem to have got the bizarre notion that there are patents claiming computers which are capable of performing a certain task, which is just absurd and untrue. "
As a patent attorney, having fought software patents for many many years now, i'm just going to say this is completely and totally false.
I think this is the heart of your argument here. (Correct me if I'm wrong.)
The problem is that in terms of calculation, computers are not limited. In fact, that was proven not once, but twice, in 1939. Any computation that can be performed can be done with any general-purpose computer. The Church-Turing Thesis proves that that computer need not even be specialized: it only requires the ability to manipulate symbols deterministically in some general manner.
What these patents cover is, in fact, only those computations with the aid of a general-purpose computer, and the only reason those patents have been allowed is by this fallacious argument that a general-purpose computer somehow becomes a special-purpose computer when it is programmed. This is not how computers work. A general-purpose computer does not become special-purpose merely by assigning some numbers to a pool of memory any more than an FPGA becomes an ASIC by uploading a ROM image. It is still a general-purpose computer, and its nature does not change.
If, perhaps, by programming a computer, the program magically became a new, immutable physical wiring, your argument might have merit. But we do not live in a world of magic.
If you exclude all the things computers can't do then they can do everything else. That's just begging the question. There is no way for a software program to allow a general purpose computer to trap a mouse, or generate electricity, or convert raw materials into manufactured goods etc.
I agree with your first part, but the last part is incorrect.
>If software can be patented then that patent would infringe itself.
To infringe a patent, you must make, use or sell a product incorporating the invention. A patent by itself does none of those and hence cannot infringe anything.
How are you intending to distinguish program source code in an interpreted language incorporated into the body of a patent specification from a software product consisting entirely of that same code?
A patent is essentially a document with just two purposes: 1) instructing a practitioner how to reconstruct the claimed invention, and 2) defining the legal scope of ownership for the claimed invention. By itself, it does nothing else, and thus does not constitute making, using, or selling.
Now if somebody other than the patent-holder takes the source, compiles it and uses and / or distributes it without license, they are infringing. Note that by taking and compiling the source, they are essentially just fulfilling the first intended purpose of the patent: instruction. Where they run afoul is the second purpose.
It seems like the distinction you're trying to draw is between source code and a compiled program, but that doesn't apply to interpreted languages. There is no compiled program, the source code is the program. And you can effectively convert any compiled language into an interpreted language just by associating its file extension with a two line shell script that invokes the compiler and executes the output. Trying to differentiate one from the other on that basis is frivolous.
So I still don't see how you're trying to refute the conclusion that a software patent containing code covered by its claims would infringe itself. You couldn't reproduce or distribute the patent without reproducing or distributing the program.
Obviously a patent sitting on a desk doesn't self-execute, but neither does a program on a disk sitting on the same desk. I see no relevant difference between one and the other any more than there is between a USB stick and a CD.
Compiled versus interpreted has no bearing on this. The patent and the source code in it exists only to instruct, and by itself the invention claimed is neither made, sold or used and has no commercial effect. Unless an unlicensed third party does anything with it, it is not being made, used or sold, and so cannot infringe. Software that is lying unused and unexecuted on some computer readable media is still infringing if it was created without license because the act of copying code on to or distributing that media counts as "making" or "selling". I I cannot imagine under what interpretation a patent itself could count as an "unlicensed third party".
Are you proposing that if my patent containing source code is published by Google on Google Patents, I can sue them for infringing it because they are an "unlicensed third party"?
I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.
Let me take a stab, though. Keep in mind that the text of the code does absolutely nothing until it is interpreted or compiled. Now, say your code implements a way to detect porn in an image, which is what your patent claims. By publishing the code in the patent, is Google Patents, or heck even the USPTO, making, using or selling "porn detection in images"?
A simple answer to this question is the answer to the question, "Can I submit an image to USPTO/Google Patents and get a determination of whether the image contains porn?"
Depending on how you look at it computers may perform physical operations based on instructions; which may amount to calculations. The physical computer vs. the conceptual computer.