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Difference between revisions of "Software does not make a computer a new machine"

m (Example "Beauregard claim": application)
(US case law: Those who argue that software can make a new machine sometimes use the "as a whole" phrase from the Diamond v. Diehr ruling by US Supreme Court on 3 March 1981. Ben Klemens refutes this in his book Math You Can't Use and in)
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The "new machine" argument is an attempt by patent lawyers to fool examiners and judges by presenting a non-novel component (the computer) together with a non-patentable component (the software) and get a patent on the combination, even though neither component is actually patentable and the act of putting the software on a computer is trivial and expected.
One way to pretend a software idea is a hardware idea is by describing the software idea and then adding "on a computer" or "on a storage medium".  This is sometimes called a '''Beauregard claim''' in the [[USA|US]].{{help|Have I got that right?}}
 
  
The goal is to present a non-novel object (the computer) and a non-patentable object (the software) and get a patent on the combinationThe argument made is that, when the software is put on the computer, the computer becomes a "new machine" or an "improved machine".
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The patent applications usually mention a computer or a "storage medium"When defending such patents in court, patent lawyers sometimes describe the idea as creating a "new machine" because the computer appears to have gained a new ability, when in reality the computer could always perform these tasks. So, instead of claiming this:
  
==In re Beauregard==
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* a process which does ''X'', using a computer
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The patent lawyer writes this:
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* a computer which can do ''X''
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This is sometimes called a '''Beauregard claim''' in the [[USA|US]].
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==US case law==
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Those who argue that software can make a new machine sometimes use the "as a whole" phrase from the [[Diamond v. Diehr ruling by US Supreme Court on 3 March 1981]].  [[Ben Klemens]] refutes this argument in his book [[Math You Can't Use]] and in the amicus brief he wrote for the CAFC case [[in re Bilski]].
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===In re Alappat (1994)===
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A patent of this type was upheld by the [[US CAFC]] in 1994 in the [[In re Alappat]] case.  The patent was on using anti-aliasing to improve image display, and the court agreed that "''a general purpose computer in effect becomes a special purpose computer''".
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===In re Beauregard (1995)===
  
 
''[[In re Beauregard]], 53 F.3d 1583 ([[US Court of Appeals for the Federal Circuit|Fed. Cir.]] 1995)''.
 
''[[In re Beauregard]], 53 F.3d 1583 ([[US Court of Appeals for the Federal Circuit|Fed. Cir.]] 1995)''.
  
===Example "Beauregard claim"===
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====Example "Beauregard claim"====
  
One example given by ''Patently-O'' is claim #2 of this patent application:<ref>http://www.patentlyo.com/patent/2011/08/if-the-software-method-is-not-patentable-then-neither-is-the-computer-readable-medium.html</ref>
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One example given by ''[[Patently-O]]'' is claim #2 of this patent application:<ref>http://www.patentlyo.com/patent/2011/08/if-the-software-method-is-not-patentable-then-neither-is-the-computer-readable-medium.html</ref>
  
 
<blockquote>
 
<blockquote>
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</blockquote>
 
</blockquote>
  
==Analogies==
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==UK case law==
  
===Player piano===
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From the [[Symbian ruling by UK Court of Appeal on 8 October 2008]] declared that yes, software can turn an old computer into a new machine:
 
 
From the minority opinion in the [[CAFC]]'s 1994 [[in re Alappat]] decision:
 
  
 
<blockquote>
 
<blockquote>
As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat’s “rasterizer.
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56. Putting it another way, a computer with this program operates better than a similar prior art computer. To say "oh but that is only because it is a better program – the computer itself is unchanged" gives no credit to the practical reality of what is achieved by the program. As a matter of such reality there is more than just a "better program", there is a faster and more reliable computer.
 
</blockquote>
 
</blockquote>
  
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==Analogies==
  
===The point of these analogies===
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* "''As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat’s “rasterizer.”''" (From the minority opinion in the [[US CAFC]]'s 1994 [[in re Alappat]] decision)
 
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* A basic calculator does not become a new calculator when you punch in a new calculation for it to perform.
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.
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* 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 a combination of a record player and music.
 
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<!-- please only add more if you think your example is very comparable to software+computer. We need a small number of very good examples. Not a large number of mediocre ones. -->
=== 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.
 
 
 
=== 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 {{SITENAME}}==
 
==Related pages on {{SITENAME}}==
 
* [[Arguments]]
 
* [[Arguments]]
 
* [[Software is math]]
 
* [[Software is math]]
* [[Choose your words]]
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* [[Choosing words to use in legal proposals]]
 
* [[Patenting software in ROM]]
 
* [[Patenting software in ROM]]
 
* [[Analogies]]
 
* [[Analogies]]
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* [http://people.ffii.org/~jmaebe/swpat/cii.html Patents on CII's and pure software patents: what's in a name?], '''Jonas Maebe''' - ''discusses washing machines and mobile phones''
 
* [http://people.ffii.org/~jmaebe/swpat/cii.html Patents on CII's and pure software patents: what's in a name?], '''Jonas Maebe''' - ''discusses washing machines and mobile phones''
 
* [http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beauregard Patent types: Beauregard], '''Wikipedia'''
 
* [http://en.wikipedia.org/wiki/List_of_patent_claim_types#Beauregard Patent types: Beauregard], '''Wikipedia'''
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* [https://en.wikipedia.org/wiki/Piano_roll_blues Piano roll blues], '''Wikipedia'''
 
* [http://itlaw.wikia.com/wiki/Beauregard_claim Beauregard claim], '''IT Law Wiki'''
 
* [http://itlaw.wikia.com/wiki/Beauregard_claim Beauregard claim], '''IT Law Wiki'''
  

Revision as of 06:16, 10 March 2014

The "new machine" argument is an attempt by patent lawyers to fool examiners and judges by presenting a non-novel component (the computer) together with a non-patentable component (the software) and get a patent on the combination, even though neither component is actually patentable and the act of putting the software on a computer is trivial and expected.

The patent applications usually mention a computer or a "storage medium". When defending such patents in court, patent lawyers sometimes describe the idea as creating a "new machine" because the computer appears to have gained a new ability, when in reality the computer could always perform these tasks. So, instead of claiming this:

  • a process which does X, using a computer

The patent lawyer writes this:

  • a computer which can do X

This is sometimes called a Beauregard claim in the US.

US case law

Those who argue that software can make a new machine sometimes use the "as a whole" phrase from the Diamond v. Diehr ruling by US Supreme Court on 3 March 1981. Ben Klemens refutes this argument in his book Math You Can't Use and in the amicus brief he wrote for the CAFC case in re Bilski.

In re Alappat (1994)

A patent of this type was upheld by the US CAFC in 1994 in the In re Alappat case. The patent was on using anti-aliasing to improve image display, and the court agreed that "a general purpose computer in effect becomes a special purpose computer".

In re Beauregard (1995)

In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995).

Example "Beauregard claim"

One example given by Patently-O is claim #2 of this patent application:[1]

2. A computer readable medium containing program instructions for detecting fraud in a credit card transaction between a consumer and a merchant over the Internet, wherein execution of the program instructions by one or more processors of a computer system causes the one or more processors to carry out the steps of:

a) obtaining credit card information relating to the transactions from the consumer; and

b) verifying the credit card information based upon values of plurality of parameters, in combination with information that identifies the consumer, and that may provide an indication whether the credit card transaction is fraudulent, wherein each value among the plurality of parameters is weighted in the verifying step according to an importance, as determined by the merchant, of that value to the credit card transaction, so as to provide the merchant with a quantifiable indication of whether the credit card transaction is fraudulent,

wherein execution of the program instructions by one or more processors of a computer system causes that one or more processors to carry out the further steps of;

[a] obtaining information about other transactions that have utilized an Internet address that is identified with the credit card transaction;

[b] constructing a map of credit card numbers based upon the other transactions; and

[c] utilizing the map of credit card numbers to determine if the credit card transaction is valid.

3. A method for verifying the validity of a credit card transaction over the Internet comprising the steps of:

a) obtaining information about other transactions that have utilized an Internet address that is identified with the credit card transaction;

b) constructing a map of credit card numbers based upon the other transactions and;

c) utilizing the map of credit card numbers to determine if the credit card transaction is valid.

UK case law

From the Symbian ruling by UK Court of Appeal on 8 October 2008 declared that yes, software can turn an old computer into a new machine:

56. Putting it another way, a computer with this program operates better than a similar prior art computer. To say "oh but that is only because it is a better program – the computer itself is unchanged" gives no credit to the practical reality of what is achieved by the program. As a matter of such reality there is more than just a "better program", there is a faster and more reliable computer.

Analogies

  • "As the player piano playing new music is not the stuff of patent law, neither is the mathematics that is Alappat’s “rasterizer.”" (From the minority opinion in the US CAFC's 1994 in re Alappat decision)
  • A basic calculator does not become a new calculator when you punch in a new calculation for it to perform.
  • 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 a combination of a record player and music.

Related pages on ESP Wiki

External links

References