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

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

> > 3. The provisions of paragraph 2 of this Article shall exclude
> > patentability of the subject matter or activities referred to in
> > that provision only to the extent to which a patent application or
> > patent relates to such subject matter or activities as such


Jean-Baptiste Soufron wrote:
> 
> The provisions of paragraph 2 shall exclude patentability ... only "when
> a patent relates to the items listed in article 2 as such". It's a
> possible interpretation


No, it's not.

It says the law shall exclude software from patentability *only to the
extent to which* (not "when") a claim or patent relates to software.

That's what it says.


The key word in this clause is really "a" -- which designates that it is
addressing the practical question of deciding the patentability of *a
particular claim or case* with respect to the extent to which that instance
relates to software.

The generality of the main clause (Software is excluded from patentability
only to the following extent . . .) is reversed by the particularity of what
it's talking about in the limit it supposedly describing (the extent to
which a[n individual] claim or patent relates to software).

"To the extent to which" is ambiguous in this framework because it lets the
clause be parsed as either 1) "Software is excluded from patentability only
as far as x" or 2) "In a particular claim, software is excluded from
patentability only to the extent to which the claim relates to software as
such."  Trying to take the first reading makes the whole clause nonsensical
when you look at what x is (it then becomes a clause speaking in general
about a limit that's expressed only in a particular way.).  The second
reading, at the same time, is redundant and silly.

But "as such" means software is different and is not patentable, any way you
look at it.


Seth


-- 

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or distribution of
this incidentally recorded communication.  Original authorship should be
attributed reasonably, but only so far as such an expectation might hold for
usual practice in ordinary social discourse to which one holds no claim of
exclusive rights.