[Patents] Economic assessment

[Edward Avis epa98@doc.ic.ac.uk]

On Sat, 25 Nov 2000, Gregory Aharonian wrote:

>When it comes to
>patent law, I dislike the uses of the words "hardware" and "software",
>and prefer "computing" or "automata" patents, where the functionality
>(and its novelty and nonobviousness) is the only thing that matters,
>and its expression (hardware, software, optics, etc.) is a marketing
>decision.

Certainly there are some things that can be implemented both in hardware
and in software.  But that doesn't mean that the expression is
irrelevant or that it is hard to determine.

I can't remember if I've used this analogy before, but: consider a
modified piano that, when a single note is pressed, hits two sets of
strings to play both that note and the same note at twice the
frequency.  This is a physical device and thus patentable.

You could also get the same effect by writing a musical score to be
played on a conventional piano.  Musical scores can be copyright but the
idea of playing both a note and its equivalent at twice the frequency
(ie an octave higher) is not patentable for musical scores.  No sheet
music, whether on paper or stored electronically, could infringe on a
patent.

This is as it should be because (IMHO) patents are more appropriate for
the first area and copyrights for the second.  The fact that you can
get the same effect in one of two ways is irrelevant.

>People on this list might want to try to come up with a definition of
>"software" that can actually be used to debate these issues in Europe.

How about this: pure information whether in printed or electronic form
does not infringe on any patent.  If a computer system is noninfringing
when considered without any software running on it, it is also
noninfringing when running software.  Software is defined as information
(whether program code or just data) which is input into a computer.

>Most of the American definitions of the terms encompass non-"software"
>concepts such as digital hardware circuit diagrams and other electrical
>and mechanical systems.

Of course a circuit diagram should not infringe any patent - otherwise
the patent document itself would be illegal and so would some
electronics textbooks.  But manufactured circuitry - something you can
hold in your hand - which is based on a circuit diagram may infringe on
a patent.  (Although it isn't the particular circuit but any circuit
using the patented techniques.)

-- 
Ed Avis
epa98@doc.ic.ac.uk