Software is math
Mathematical formulas are generally recognised as non-patentable because math is not patentable subject matter.
Since the logic (idea) of software can be reduced to a mathematical formula (idea) with Church-Turing Thesis, and because mathematical formulas (idea) are not patentable, patent applications for software ideas should be rejected.
Respected computer scientist Donald Knuth makes the argument:
To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.[1]
Contents
Math is not patentable
Case law in the USA
In the USA, math is unpatentable because it is a "law of nature", that is to say a "scientific truth", and as such it can never be "invented", only "discovered", and patents are not granted for discoveries.
The non-patentability of math was confirmed in the case Parker v. Flook (1978, USA):
Respondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under 101 of the Patent Act.
Also, in the 1948 case Funk Bros. v. Kalo Inoculant:
He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.[2]
Ideas which use math can be patentable, but this is not controversial:
While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.[3]
Related pages on ESP Wiki
- Anti-lock braking example - if the physical car invention is patentable, should an in-computer game-simulation be?
- Books:
- Software does not make a computer a new machine
- Australia#Case law - patents on math might be valid in Australia
External links
- (in German) http://www.users.sbg.ac.at/~jack/legal/swp/tech-turing-lambda.pdf
- Wikipedia: Church-Turing thesis
- The Rise Of The Information Processing Patent, by Ben Klemens (Church-Turing is discussed on page 8)
- An Explanation of Computation Theory for Lawyers, Groklaw
- Physical Aspects of Mathematics (An Open Response to the USPTO), 27 Sep 2010, PolR (Groklaw) (submission to USPTO 2010 consultation - deadline 27 sept)
- 1 + 1 (pat. pending) — Mathematics, Software and Free Speech, 26 Apr 2011, PolR (Groklaw)
Counter view
- Computer Software is Not Math
- On Abstraction and Equivalence in Software Patent Doctrine: A Response to Bessen, Meurer, and Klemens (challenging, inter alia, Klemens's "repeated mischaracterizations of the Church-Turing Thesis")
