From PILCH Hartmut <phm@a2e.de>  Sun May  6 16:02:42 2001
From: PILCH Hartmut <phm@a2e.de> (PILCH Hartmut)
Date: Sun, 6 May 2001 17:02:42 +0200 (CEST)
Subject: [Patents] hardware-embodied software logic as a door-opener
In-Reply-To: <Pine.LNX.4.33.0105061629460.7913-100000@mulix.oas.a2e.de>
Message-ID: <Pine.LNX.4.33.0105061654230.7995-100000@mulix.oas.a2e.de>

Oops, sorry, there's a bad typo in what I wrote below:

> > Greg Aharonian is correct when he makes the point that software and
> > hardware are interchangeable.  I have found that few patent
> > practitioners really understand this, and as a result write patents
> > which are weaker than they could have been.
>
> I think everybody understands that you can implement any logic in
> software.

I meant to write "in hardware".
Even more accurate "in both software and hardware".
This however doesn't mean that you can implement any hardware invention
in software running on hardware known from prior art.

> This was well known and fully understood in the sixties and seventies and
> has been fully addressed by those doctrines that exclude software (and
> logics) from patentability.

One article that summarises these dicussions of the 60-70s is

	http://swpat.ffii.org/vreji/papri/grur-kolle77/

In the 60s a lot of people in Germany obtained software patents by "the
art of formulating claims" as Kolle called it.  The claimed hardware that
was really just an embodiment of logics that could have been just as well
implemented as software running on already-state-of-the-art hardware.

Even the Federal Patent Court (BPatG) was fooled by this, but the trend
was then reversed in 1973, when the BPatG formulated a few rules for
recognising this kind of claim, which were then further elaborated by the
Federal Court (BGH) in 1976.

Kolle also noted in 1977 (and in some of his other GRUR articles) that US
jurisprudence was too formalistic and superficial and had not seen through
this problem, which is why the US was, together with England, at that time
already of the forefront of those who were making software patentable.

-phm

----------------------------------------------------------------------
This message was distributed by the EPO mailing list.
Information on how to leave this mailinglist can be found at:
http://www.european-patent-office.org/mail.htm
----------------------------------------------------------------------


