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Software does not make a computer a new machine

Revision as of 10:29, 24 November 2010 by Jose X (talk | contribs) (house is not short and mp3 player analogy added)

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-innovative 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.”

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.

Brief analogies

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".

Long analogies

House

A house, whose components and behavior will be described, can be made to be a full working computer.

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. The value in software depends on what we do with that information.

mp3 player simulator

When a house or computer runs software to behave like an mp3 player, it is still the same house or computer but used differently. It's like a human, robot, pocket calculator, or cooking machine performing a new action (or cooking a new dish) based upon a new set of instructions handed to it. The human, robot, calculator, and cooking machine have not changed to a new machine, even if we decide to call the human "an accountant", the robot "a speedy butler", the calculator "a calculator of distances among planets", or the cooking machine "an apple pie baking machine". Changing a label because the machine is behaving differently is not creating a new machine, but creating a new use. [This page focuses on why a machine patent does not apply to software, and does not consider the case of a process patent.]

We note as well that an mp3 player can be made as a new device entirely. It would use cheaper parts than a full blown computer. It would not be subject to being "erased". The computer (plus speaker system) is still the same computer (plus speaker system) as before simulating the effect (within its limitations) of the mp3 player.

Related pages on ESP Wiki

External links

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