[Patents] patents for information-matter amalgams

[PILCH Hartmut phm@a2e.de]

> > But one could for reasons of political expediency allow material
> > embodiments like firmware or mp3 players to be patented, as long as it is
> > clear that the software embodiment can not become the target of any
> > claims.
> >
> > There are some areas in industry where people have become so used to
> > patenting software inventions (such as a motor with an ABS control system)
> > that they might be unhappy if these inventions are no longer patentable.
> > And patenting them doesn't do much harm, as long as only the whole
> > device and not the information is targeted.
> 
> You know that this can open a can of worms? If software "as such" cannot 
> infringe a
> patent: fine. But software "as such" is always useless for us. We need a 
> computer
> processing the software to make use of it. If someone says "Gee, I do not 
> patent
> some software, I patent some software in combination with a general purpose
> computer". So reimplementations may be written, but not used, because their 
> usage
> will always be in combination with a computer. This would be unbearable.

At least distributing the programs would not be illegal, neither would
private use be.  The borderline case would be the sale of a PC with a
bundled MP3 decoder.  Here again the owner would probably not charge very
high fees, because he would be aware of the fact that the software alone
can be freely distributed.  For use licences, he would be inclined to
search for a non-intrusive shareware-type system that is tolerable for
authors and users, because without compromising he'd be likely to earn 
only less. 

It would also be possible to push the border further back and deny view
the PC harddisk as a pure information storage medium, so that bundling MP3
software would require no patent license.

In that case the criterion could be: whenever information can be added to
and deleted to the medium, there is no infringement.  A ROM device might
then be an infringement.  Or, to push the border even further into
unharmful territory, an car whose production was controlled by an patented
software process could be considered an infringment.

The above would of course be only a compromise for dealing with legacy
problems.  It should not be used for constructing loopholes in the basic
doctrine.

It could be formulated something like:

  Absolute protection is available only for inventions which which cannot
  be reduced to an informational structure.
  For expediency reasons, relative protection is available for material
  embodiments of informational inventions, as long as the information
  is amalgamated inseparably into them (i.e. such that it cannot be
  erased from them by normal operations known to the ordinary user)
  
-phm