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Software does not make a computer a new machine

Revision as of 17:30, 11 January 2013 by Ciaran (talk | contribs) (rm call for help, I think that part is right already)

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". 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". 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 describes the same idea but tries to amalgamate the computer and the process (software), which are really completely separate.

This is sometimes called a Beauregard claim in the US.

In re Alappat (1994)

The patent in In re Alappat, on using anti-aliasing to improve image display, was upheld by the CAFC because with this software, "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.

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.

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.”

Calculator

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

Car

If a car which can drive anywhere has already been invented, no one should be able to patent a car that drives from Albequerque to San Diego, etc. -- the more general invention.

Related pages on ESP Wiki

External links

References