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Patenting software in ROM

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[edit] In the UK

In the UK, this approach was rejected in the Gale case. This was described by the judge in the High Court Symbian case:[1]

The program was loaded into the ROM of the computer and the claim was for the circuitry of the ROM loaded with the program so as to enable the computer to calculate square roots in this new way. The Court of Appeal held (applying the reasoning in Merrill Lynch) that if the program was not patentable it could not be saved merely by incorporating it into some form of carrier whether a computer or (in those days) a floppy disk.

and also when the Symbian case was heard by the Court of Appeal:

the patent was refused as "the instructions do not embody a technical process which exists outside the computer". He went on "Nor … do the instructions solve a 'technical' problem lying with the computer itself" as in IBM/ Data processor network. Although Nicholls LJ had "difficulty in identifying clearly the boundary line between what is and what is not a technical problem for this purpose", he concluded that all Mr Gale had done was "to prescribe for the cpu in a conventional computer a different set of calculations from those normally prescribed when the user wants a square root".

[edit] In the USA

In the 1970s, software developers sometimes patented software ideas by burning their software onto a chip such as a ROM chip and claiming a patent on that combination.

This was used to patent the "setuid" feature of Unix.

[edit] Related pages on en.swpat.org

[edit] References

  1. http://www.bailii.org/ew/cases/EWHC/Patents/2008/518.html

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