Software does not make a computer a new machine

One method used to circumvent the limits of software patentability, is to claim not "software" but "software and a computer". The goal is to present one non-novel object (the computer) and one non-patentable object (the software) and get a patent on the combination. The argument made is that, when the software is put on the computer, the computer becomes a "new machine".

One example of this logic being rejected by the US CAFC (appeals court), is the in re Alappat decision, which said:

As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat’s “rasterizer.”

Brief analogies

The point of these analogies

Our goal is to show how computers are the same as other things whose use cannot be patented. When you use a record player, you get music. The music might be technical, innovative, new, etc. but no one will ever get a patent on use of a record player. This page collects other examples to show why running software on a computer can't be considered patentable.

Calculator

A basic calculator does not become a new calculator when you punch in a new calculation for it to perform.

Car

If we have patented an automobile which can drive anywhere, we cannot then come back and file patents for driving from Albequerque to San Diego, etc. -- the more general patent already applies.

Human

A human performing a set of steps does not become a different human when he or she changes to perform a new set of steps. The human is simply following a new configuration in his or her head.

Similarly, a computer system running different software is still the same (already patented) computer system.

Fingers v. fork

A human using his/her fingers to scoop up food does not become a fork. Similar effects can be achieved through completely different "machines", eg, where one simulates the other.

Longer comparisons

The point of these comparisons

These aim to give further insight into how software running on a computer does not make a new machine.

House

A house can be made to be a full working computer. When software is added to this house, we do not create a new machine.

The house has doors, motors, sensors, wiring, and a clock. These tangible components are called "hardware". They are built once and their behavior is never changed afterward. Doors open and shut, clocks tick, etc, all according to design. The quality and construction of the doors, clock, sensors, etc, can be patented. These are all tangible things constructed.

Software is intangible. Software is information. "Creating" software does not create anything tangible. When we add software to the house, we simply rearrange some of the doors in the house (into the open position or else into the closed position). Creating software adjusts the position of components of the house. How can we represent a value of 1 vs 0? By opening a door rather than closing it. Similarly, we can raise our hand vs lowering it. Creating software does not create anything tangible. Creating software rearranges. We open a door or close it; we raise a hand or lower it. We open a pair of scissors or close them. We turn on a light or turn if off. We don't create a new house, person, scissors, or light when we add software to these things. Software is just information.

Medical Diagnostics Calculations

When 1000 mathematicians and physicians sit down at their computers to collaborate over the Internet to come up with formulas and algorithms that use values given to it beforehand in order to derive a medical diagnosis, they are not creating a new machine, even if the software they create can run on a computer and simulate the information processing taking place inside a proprietary medical diagnostics hospital machine.

The medical diagnostic machine requires that certain hardware exist to take certain measurements (eg, to analyze blood samples or measure temperature), and these all come in a robust package optimized for hospital use. Manufacturing this machine is different than having a world of professionals collaborate to produce the top quality algorithms (as software) that produce the best diagnoses and then installing these algorithms on a computer.

Algorithms to process medical information are within the purview of the mind only. Those creating the algorithms (software) are not creating (building) hardware. Their intellectual creation process should never be hand-cuffed with a patent, but that is exactly what is being done if patents are to be used to prevent them from testing out and optimizing those algorithms on a computer or to prevent them from using the algorithms to provide diagnoses for others.

Copyright is what was designed to cover products of the intellect like software. These needs are different than the needs patents address (to enable the creation of new hardware).

Related pages on ESP Wiki

• Arguments
• Software is math
• Choose your words
• Patenting software in ROM
• Analogies
• Computer simulations and representations

External links

• Software is a special purpose machine says microsoft
• Correcting Microsoft's Bilski Amicus Brief -- How Do Computers Really Work?, Groklaw guest article
• Patents on CII's and pure software patents: what's in a name?, Jonas Maebe - discusses washing machines and mobile phones