[Patents] Re: Freesw Re: Patents DeCSS, source code and software patents

[Xuan Baldauf xuan--swpat@baldauf.org]

Philippe.AIGRAIN@cec.eu.int wrote:

> Xuan,
>
> Indeed, if the reference is allowed to be a "generic computer"
> or if even worse one considers that "a software represents its
> execution on a generic computer", then the danger you are
> highlighting is well real.
> But one the other hand, it was classically accepted that if
> you specify a precise device or physical process as an
> execution environment (including all input/output devices
> and contents) and if the patent protection scope is granted
> only to that device or process and does not extend for
> instance to the execution of the same software in another
> execution environment, then patentability can be reasonable.
> What do you think?

I think that this won't work. For example, if the EPO chooses to not let you
patent the MP3 algorithm, but to patent it running in a Java Virtual Machine 
on a
hardware MP3 player you can carry with you (like a Walkman), the patent would 
be
worth much or nothing, depending on how far the interpretation of "execution
environment" is. Some competitor might build also a Walkman-like MP3 player, 
but
not internally building on "Embedded Java", but "Embedded Linux". Now you have
another execution environment. Does the clone infringe the patent of the 
original?

You could say yes, because the MP3 algorithm is the same. You could say no,
because the "execution environment" is another one. But you also could say 
yes,
because despite of having another micro operation system, you could use 
exactly
the same hardware. You could say no, because despite of the fact that every 
MP3
algorithm has the same principle in mind, they are likely to differ in detail.

And "execution environments" if you mean something like a virtual machine 
with a
defined command|API set, are transformable into each other. Once upon a time, 
you
could emulate MS-DOS on an Amiga computer, and now you can emulate an Amiga 
on a
generic personal computer (using DOS or Windows or Linux...). For the many 
JavaVMs
out there, it's the same. If you have some Java software and you patent it 
along
with the JavaVM and Windows98 and a PentiumIII Processor, does an 
implementation
on Athlon infringe the patent, despite of the changed execution environment?

Because every general purpose "execution environment" is transformable to 
every
other general purpose "execution environment", you are giving the patent 
judges a
wide choice between "A transformation does not infringe the patent." and 
"Every
possible transformation is a patent infringement". The former would be the 
better
one, but useless for people who patent algorithms (which are capable of being 
run
on a general purpose computer), the latter would lead to software patents. 
This
choice is to broad to be handled by the judiciary, because this would worsen 
both
sides: Software patenters would not be certain wether their patents are 
usable,
and software writers would not be certain wether the patents they possibly
infringe are can do any harm to them or not.

>
>
> Note that as early as 1948, in his famous conference given
> to a congress of psychiatrists, John von Neumann pointed out
> that the notion of an universal computer is not a practical
> one, that in the realm of real technology (that is material
> machines, not abstract ones like the Turing machine),
> there are no universal machines but only particular ones,
> and that technology, including the von Neumann's model
> of computers is about building the RIGHT particular ones.

There might be a lack of an universal|general machine, but there are many 
general
_purpose_ computers|machines out there, and the latter are 
software-technically
transformable into each other.

>
>
> Philippe

Xuân.

>
> > PILCH Hartmut wrote:
> >
> > > [...]
> > > 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.
> >
> > Xuân.
> >
> >
> >
> >
> > _______________________________________________
> > Freesw mailing list
> > Freesw@conecta.it
> > http://mail.conecta.it/mailman/listinfo/freesw
>
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