Re: [Patents] newsscan: Software patent limits 'go too far'

["Seth Johnson" <seth.johnson@realmeasures.dyndns.org>]

-----Original Message-----
From: Gregory Aharonian <srctran@world.std.com>
Date: Tue, 21 Oct 2003 13:49:14 -0400 (EDT)
Subject: Re: [Patents] newsscan: Software patent limits 'go too far'
> 
> But there is no "spirit" in the phrase "as such" - it is a completely
> vague phrase deliberately introduced by politicians into the EPC
> because they didn't want to think about the issue, and preferred to
> defer to the EPO.  So the only "spirit" I see in the phrase is the
> laziness of politicians.  You see the same political vagueness and
> laziness around the world where politicians have passed laws saying
> the "expression" of computer software is copyrightable, but not
> the "idea", withouth the politicians explaining what they mean, if
> anything, by "idea" and "expression", preferring again to leave this
> to someone else to solve (in this case, the courts).


They introduced the phrase "as such" because they wanted to say that 
software was different and could not be covered by patents.

It's really true!  That's absolutely what it means!  I thought about 
it a whole lot, you see.  I didn't want to make a mistake, because if 
I didn't understand this, then who knows what I might say by mistake 
in casual conversation, without even knowing what I just said!

But after having entertained the matter at great length and checking a 
lot of books out of the library, I decided there was nothing else I 
could do but just bite the bullet and make up my mind about 
whether "as such" means what I thought it meant.  And that was when -- 
you know what I noticed?  It was amazing!  Like a light coming on!  I 
realized suddenly that you can think about how to understand something 
very, very, very, very, very, very carefully -- you could even write 
down the fruits of your laborious study in all of its detail, and then 
you could convert that into transistors -- and -- get this -- it 
doesn't change!

I was so flabbergasted when I realized that!  I almost wet my pants!

Seth


> There exists a growing number of software tools that translate C code
> into field programmable gate arrays netlists, i.e, convert C code
> directly into a specific circuit of AND, OR, NOT and higher level
> digital circuit components.  To that extent, I view C computer
> programs no different than I view digital hardware circuit diagrams -
> two different but logically equivalent ways of representing a
> specific machine.  And therefore both equally patentable.
> 
> So it seems to me that some C code, claimed with a specific C
> compiler for a specific target processor, altogether is a specific
> piece of hardware, a specific machine, as patentable as any other
> machine.  To be more specific, I can specify the amount of memory
> associated with the processor, etc.  I can describe as specific and
> concrete as possible a specific machine, a machine as patentable as
> any other.  I can do this in one patent claim: "A machine to process
> signals, comprising processor P, memory M, compiler C, and source
> code S."
> 
> But it is kind of silly to specify specific processors, memories and 
> compilers, since with a dependent claims, I can claim this machine 
> using all sorts of processors and compilers and memory sizes.  But
> this is a waste, since it is obvious to anyone skilled how to port C
> sourece code across platforms.  So why waste claim language by
> describing incredibly well known features, and just focus on the
> claiming of the C source code - the software?
> 
> Now a combination of a processor, memory and compiler and software as
> a patent claim (which is what EPO is allowing) is not the software
> "as such".  To make everyone happy, EPO could require patent
> applicants to include all sorts of extra language in the patent
> claims that discusses the specific processor, memory and compiler.
>
> Then both the EPO and patent applicants would legally overcome
> the "as such" limitation. So when EPO allows software patent claims
> that are less specific and focus more on the software, I suspect EPO
> just doesn't want to waste its time, the applicants' time, and
> humanity's time.
> 
> Is this all a bit of playing word games?  Sure, but EPO was given
> this power by politicians too ignorant to understand software, and
> too lazy to deal with this issue themselves.  So they include in the
> law completely vague language like "as such".  And now they are
> repeating this ignorance and laziness by trying to put "technical
> effect" into the law.