[Patents] triviality of innovation steps in logical buildings

[phm@aliuC2.oas.a2e.de phm@aliuC2.oas.a2e.de]

Gregory Aharonian wrote:
> Hartmut complains about software patents:
> >In the end, which layer is claimed depends mainly not on
> >        which layer represents my ingenuity
> >
> >but
> >        which layer prevents my competitor from solving the problem?
> >
> >which again leads to a model of "functional claims" or claims to
> >"technical effects", which in fact are problem descriptions.
> 
> A question that can be, and is often if not more often, applied to
> hardware circuits and gene sequencing patents, not just software.

Both of these examples may qualify as "software patents" in the sense that
the invention lies in a realm of mathematical reasoning based on known
models.  Sometimes the hardware medium is so well known that it is really
equivalent to a universal computer, on which one can freely construct
layer by layer to utmost complexity without having to fear any adverse
reaction coming from the accumulation of unforeseeable natural forces.

> In fact, I have been complaining for years that in the United States
> a patent claims drafting format that forces this information to be
> disclosed, the Jepson format (which appears in claims with the language
> [..... the improvement comprising ....]) is being used less and less as
> companies broadly claim higher and higher layers of their ingenuity.
> 
> But once again, software is nothing special with regards to this valid
> complaint about patent claiming.

There is one more reason why functional claims (technical effect claims)
are typical for software patents:  the patent system is constructed to
require concreteness and physical substance.  When that requirement is
softened and abstract-logical innovations are patented, they are still
patented in the form of physical processes and "technical effects".  You
usually do not patent a mathematical formula directly but only in terms of
certain effects that that appear on the physical surface of the computing
equipment.  With a technical invention involving a new causality of
natural forces, you patent the causal relation that is right at the core
of the solution.  And you don't have much of a choice between layers.  
Nature has determined where your solution is.

Prof. TAMAI of Tokyo University wrote a nice article on that recently. I
tried to summarize it under

        http://swpat.ffii.org/vreji/papri/ist-tamai98/

but didn't get very far yet.

-phm