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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.

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So ... | 457 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
So ...
Authored by: Anonymous on Sunday, June 09 2013 @ 02:12 PM EDT

The make a new machine doctrine is an absurdity.
Not if you define:
machine := device to do one thing
  • Take a general purpose computer and put some software on it to do a specific task and you've created a machine to do that task;
  • Take that same general purpose computer and put some different software on it to do a different specific task and you've created a new machine to do this second task.
There's the problem. Lawyers will more than likely use that definition (which is fairly reasonable) and so it is not a "new machine absurdity".

Most people will, however, see the general purpose computer as a configurable machine and the software used for the configuration of that machine, so:

  • Take a general purpose computer and put some software on it to do a specific task and you've configured a machine to do that task;
  • Take that same general purpose computer and put some different software on it to do a different specific task and you've created a new configuration for that same machine to do this second task.
Once lawyers (and juries) can be convinced of this second interpretation of use of "a general computer + software", which most lay people would readily (and Groklawers already consider/) understand to be sensible, the problem disappears.

However, having seen that the election of US representatives seems to depend more on their advertising campaign than their actual doing what they said they would (by doing what their campaign contributors want instead) I don't hold out much hope for US juries to understand this (especially with a very persuasive "advertising" lawyer for the former).

cm

[ Reply to This | Parent | # ]

  • So ... - Authored by: PolR on Sunday, June 09 2013 @ 03:01 PM EDT
We know that.
Authored by: Wol on Sunday, June 09 2013 @ 04:56 PM EDT
We know that the "new machine doctrine" is absurd.

But that's my point. If they try to fix this as you expect, they bring that
absurdity front and centre. This WILL end up in front of SCOTUS if it ever ends
up in front of a Judge.

The only two scenarios I can see is the law says "sue the end user and
collect from the manufacturer" which I can't see succeeding - how can a
Judge award damages against me if I'm not even a party to the court case?

OR. The troll tries to sue the end user. The Judge says "no you have to sue
the software house". At which point software patents are dead, we hope. In
a straight case against a software house, I would hope the lawyer says "our
product is a CD" at which point it should be a straight motion for summary
judgement that infringement is not possible. You can't patent a Beyonce CD, you
can't patent a One Direction CD, you basically can't patent a music CD. And if
you can't patent a music CD, what's different about a software CD to enable you
to patent that?

And if you can't patent that software CD, then it's settled Supreme Court
precedent that sticking that into a computer CAN NOT create a new patentable
machine.

If the "new machine" rules are also Supreme Court precedent, then it
*will* get kicked up to SCOTUS to resolve as we have conflicting precedent. If,
however, the new machine doctrine is Federal Circuit precedent then the doctrine
is stone dead.

So. Whether they try to fix it or not, it will either kill software patents
stone dead, or create conflicting precedent at SCOTUS level.

Good news either way, I HOPE.

Cheers,
Wol

[ Reply to This | Parent | # ]

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