[Patents] Economic assessment

[PILCH Hartmut phm@a2e.de]

> >If the expressionist elements of hardware
> >and software are protectable by copyright, and if the functional
> >elements of hardware are protectable by patents, especially in
> >light of hardware/software codesign tools, the functional elements
> >of software are and should be protectable as well,
> 
> There's that 'should' word.

> I don't think that the fact that the patent system works in a particular
> way for hardware is sufficient reason to apply it in the same way (or
> what patent offices might consider to be the same way) to software.  We
> don't have patent laws for the sake of having a neat and tidy patent
> system.  We have them to promote progress and the spread of knowledge.
> On this basis, I believe that software patents run counter to the
> intent of the patent system.

Moreover, the conditions here are hypothetic.
It is wrong to claim that functional elements of hardware in general are
or should be patentable.
If co-design tools shed any light on something, then on the fact that
certain practises of hardware patenting are questionable also.
Any patentable solution should be based on a newly found direct causal
relation between natural forces and a physical effect.
A co-design tool is based on a model of known causal relations, and
anything designed with it doesn't or shouldn't qualify as a patentable
invention.
Moreover, from the viewpoint of patent law dogmatics, there it would even
be perfectly permissible to grant a patent on a hardware solution but not
on an equivalent software solution.   Equivalence doctrine is usable only
in infringement lawsuits, not in arguing about patentable subject matter.
And if the law says that software cannot infringe, then the law overrides
any attempt to use the equivalence doctrine.
This being said, any further attempt by Greg to use his equivalence
argumentation (if A is protectable then B should also) in this mailing
list without first refuting what I said is troll behavior.  Actually, it
is the umpteenth time I am saying all this already.

-phm