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Authored by: PolR on Saturday, February 02 2013 @ 05:09 PM EST |
Patents are neither on the algorithm nor on the source code. They are on what
lawyers call the "process" that is the execution by the hardware of
the algorithm.
The courts have ruled that the "structure" of this process is dictated
by the knowledge of the algorithm. This is in a legal mindset where it is
accepted that most algorithms are not 'mathematical'. We all know how wrong this
is but this is the kind of background we are working with.
The question of the USPTO is about an arcane issue of law called section 112(f)
of the patent act. When is it triggered? According to this part of the law
whenever a portion of a claim is written in functional terms it is limited to
the "structure" disclosed in the specification part of the patent (or
its equivalents). The courts have ruled that in the case of software this
structure is the disclosed algorithm. If not algorithm is disclosed the claim is
invalid as indefinite.
This proposed response is that section 112(f) should always be triggered for
reasons explained in section A. And section B explains what is sufficient
structure that must be disclosed for this purpose. The addendum explains that
from a developer's point of view disclosure should also include the source code
of a working program, but this is another issue.
All this is assuming the law has not accepted that all algorithms are math. If
the courts change their mind of course this section 112(f) will become moot for
many claims because the algorithm won't be patentable in the first place. But
even in that case there is always those claims like the rubber curing patent in
Diehr where an algorithm may be part of a patentable invention. For this type of
patents section 112(f) will never be moot and our response will remain
relevant.
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