decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

The Philosophical Perspective | 756 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Philosophical Perspective
Authored by: Anonymous on Monday, July 23 2012 @ 05:20 PM EDT
You raise good questions.

>Here is a thought: could the Chinese Room experiment be
used to show the
distinction between computer steps and human steps is

I don't see how the Chinese Room can answer that question.
I'll give you different answers depending how you phrase the
question; I'm not sure what you meant by "human step" but I
doubt there is such a thing as a "step that humans can take
that computers [with programming/learning] can't." I'm not
sure what you mean by "arbitrary", either; if you mean
"worth paying attention to", that depends on your
perspective. To answer the real question, "assuming the
distinction is factual, does it justify a change in policy?"
you have to examine the motives behind the policy.

>Could it be
used to show that the meaning of data in programs should be
excluded from
patents like printed contents is excluded?

I hesitate to respond to questions containing the word
"should". I'm guessing that you have an argument for
excluding all syntactic processing from patentability, and
now you want to find an argument for excluding semantic
content, to ensure that no part of software can be

I'm no expert in patent law, but I wonder whether it's true
that "printed content is excluded". If a book describes a
patented process or contains a diagram of a patented
machine, I guess the book itself does not "practice" the
patent, but use of the book in its intended manner would be
a violation. (Would the book be grounds for an action for
some sort of contributory infringement? If so, does the
Patent Office have a special exemption?) Basically, I think
it depends on the nature of the work contained in the
content. A DVD may contain a movie, which is not
patentable, or it may contain a computer program, which is
patentable (under current US law). Though I think the
patent isn't violated by mere possession of a DVD containing
a program: you neither practice a process nor recreate the
claimed "machine" until the program runs... or at least,
until the DVD is placed in the drive? It may depend on
exactly how the patent words the claim for a machine
comprising a computer with "means for storing a program
practicing the process of claim 1". At what point does a
general-purpose storage device become a means *for* storing
some particular program?

>This is an interest in avoiding
granting exclusive rights on Speech. If computer programs
are analogous to human
thought why should they be patented?

Again, it depends on what kind of "work" they are most
analogous to. I think courts struggle with this: they allow
patents on most kinds of "process" (most of which seem quite
analogous to "human thought" to me) but they attempt to
distinguish whether a process is too close to "pure math" or
a "law of nature" or (until recently) merely a "business
method", which they try to exclude. I am skeptical as to
whether that approach is logically consistent; the court's
definition of "mathematical function", which you quoted,
seems to cover every process I can think of. But I digress.
I hadn't thought of the free-speech angle; that may be one
reason why music and movies aren't patentable. (They are
copyrightable, but copyright has fair use exceptions. And
facts aren't even copyrightable.)
You didn't use these words, but the idea that "facts aren't
patentable" has commendable simplicity and intuitive appeal.
Unfortunately it would seem to be contradicted by the vast
majority of pharmaceutical and chemical patents: "drug X
cures disease Y (best mode: use dose D)" is a fact, as is,
"mix A and B at temperature T, and you'll synthesize C".
This doesn't mean you can't support the idea that "data is
speech" or that "data aren't patentable", but I'm not sure
how to make that argument.
(Also, I foresee practical problems in distinguishing
between program and data. You can often choose between
writing a generalized program that makes decisions based on
big tables of data, or a specialized program that in effect
has lots of information "wired in" to its design. (See
also: finite state automata as emulated in software - as in
the first stage of a compiler. Is the transition table
considered data or program?))

[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )