ESP Wiki is looking for moderators and active contributors!

Software does not make a computer a new machine

Revision as of 22:48, 17 August 2011 by Ciaran (talk | contribs) (Example "Beauregard claim": application)

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 US.Can you 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 combination. The argument made is that, when the software is put on the computer, the computer becomes a "new machine" or an "improved machine".

In re Beauregard

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.

Analogies

Player piano

From the minority opinion in the CAFC's 1994 in re Alappat decision:

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.

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 ESP Wiki

External links

References