[Patents] patents for information-matter amalgams

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

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.
>
> 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.

As long as spreading clone software is no contributory infringement.

>
>
> 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)

So a ROM-BIOS could infringe another BIOS, while an EEPROM or a Flash-ROM 
could not?
Fine, I could live with it, because every clone-maker of an embedded device 
then could
implement it's software in Flash-ROM, leaving the user the option to "change" 
the
Flash-ROM by an unrecoverable "reset ROM" key combination... This effectively 
would
render all software patents unusable (but not invalid) - until a judge says 
"Oh, these
patents are not usable, the patent-owners paid for the patent, we should 
enforce it's
usability." Maybe "We extend ROM to EEPROM and Flash-ROM". Some months later 
a judge says
"We extend Flash-ROM to RAM". And then half a year later: "We extend RAM to 
every storage
medium (including Hard-Disk and CD-ROM)." At least then, clone distribution 
would be a
(contributory) infringement. But these are only nightmares, not yet real.

And when you say: "At least distributing the programs would not be illegal, 
neither would
private use be." There are commercial users. And they pay the most 
significant amount of
money the software industry receives. They (both the users and the industry) 
all would
suffer from the lack of competition.

>
> -phm
>

Xuân.