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Authored by: Anonymous on Sunday, June 16 2013 @ 10:04 PM EDT |
The software is obviously of no use if it is not installed, so that
requirement for patentability seems reasonable. The unfortunate
corollary is that making, selling and distributing cannot infringe
the patent, at least to my meagre intellect it can't. Which means
only end users can be prosecuted. Was that Gene's intent?
(Not yours I assume)
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- Off topic thread - Authored by: Anonymous on Monday, June 17 2013 @ 03:50 AM EDT
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Authored by: Anonymous on Sunday, June 16 2013 @ 10:51 PM EDT |
Gene Quinn once had the honesty to engage the folks on Groklaw.
Most people made it a point to treat him nicely and argument politely.
It was my impression that he left a bit bruised, intellectually speaking, for he
has not really been back since.
He has, however, evolved into a poster child of the, dare one say very
lawyer-driven, movement to make practically everything patentable.
It is sad to see somebody hitch their intellect to a gravy train and spend their
argumentative powers inventing ever more contorted premises to support a
position beneficial to themselves but damaging to practically everybody else.[ Reply to This | Parent | # ]
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Authored by: cjk fossman on Sunday, June 16 2013 @ 11:05 PM EDT |
Don't bother with Gene Quinn, or IP Watchtdog.
Quinn has reduced himself to claiming that Michalangelo
somehow found the statue of David withing a block of marble
in the same way that Myriad found genes in the human genome.[ Reply to This | Parent | # ]
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Authored by: PJ on Monday, June 17 2013 @ 12:25 AM EDT |
That's not the answer; it's the question.
You can read this article from ars technica
that reports on the split in the Fed. Circuit
in the CLS cases.
And from me, ask yourself this: if software is
only operative when it is installed, is that
enough for a patent, in that the computer
preexisted? Does the software alter the
computer in any way or is it the same computer
it always was? If you uninstall, is the
computer different?
That's why there is a growing body of
lawyers and companies that believe that just
saying "on a computer" doesn't make anything
patentable.[ Reply to This | Parent | # ]
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Authored by: Anonymous on Monday, June 17 2013 @ 01:38 AM EDT |
The crucial step is then that software is installed on a
computer. Is *that* novel and non-obvious?
Novel: it's been done since the dawn of computers, and -
presumably- a bit before: the first light appearing at the
horizon I'd say.
Non-obvious: What else -pray- should I do with software?
Print its source statements on paper and admire the result
hanging on the wall? With open-source software, there could
be some beauty in that, but only folks with an extreme case
of the-Matrix-fixation is a hexdump of closed-source software
going to be of interest.
In any case, i all but preloaded software, the infringing
person in this scenario is going to be the installer/end-
user, who just got some troll-protection from the latest
presidential oekaz.[ Reply to This | Parent | # ]
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Authored by: jesse on Monday, June 17 2013 @ 05:13 AM EDT |
OR mathematics.
He tried to convince me that pi was a physically existing number.
He has no idea what mathematics is, or the concept that mathematics is an
abstract field.[ Reply to This | Parent | # ]
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Authored by: Ian Al on Monday, June 17 2013 @ 05:16 AM EDT |
Gene Quinn has got the current legal position quite right, as far as I can
tell.
U.S.C. 35, § 271 - Infringement of patent, says:(c)
Whoever offers to sell or sells within the United States or imports into the
United States a component of a patented machine, manufacture, combination or
composition, or a material or apparatus for use in practicing a patented
process, constituting a material part of the invention, knowing the same to be
especially made or especially adapted for use in an infringement of such patent,
and not a staple article or commodity of commerce suitable for substantial
noninfringing use, shall be liable as a contributory
infringer.
So, someone supplying a component specifically for the
patented invention is a contributory infringer.
In Microsoft v.
AT&T in the Supreme Court, the court decided that Windows installed in a
computer was a contributory infringement of AT&T's patent.
AT&T’s patent (’580 patent) is for an apparatus (as
relevant
here, a computer) capable of digitally encoding
and compressing recorded speech.
Windows, the parties
agree, contains software that enables a computer to process
speech in the manner claimed by the ’580 patent. In
2001, AT&T filed an
infringement suit in the United
States District Court for the Southern District
of New
York, charging Microsoft with liability for domestic and
foreign
installations of Windows.
Neither Windows software (e.g., in a box on
the shelf)
nor a computer standing alone (i.e., without Windows
installed)
infringes AT&T’s patent. Infringement occurs
only when Windows is installed
on a computer, thereby
rendering it capable of performing as the patented
speech
processor. Microsoft stipulated that by installing Windows on its own
computers during the software development process, it directly infringed the
’580 patent. Microsoft further acknowledged that by licensing copies of
Windows
to manufacturers of computers sold in the
United States, it induced infringement
of AT&T’s patent.
Although both parties stipulated that
installing Windows on a computer in the USA infringed the patent, it was the
court that opined that it was installation of the software on the computer that
made the infringing machine. However, Microsoft were accused of infringing the
patent by supplying the infringing component to manufacturers outside of the
USA. The argument was put that Microsoft were supplying an infringing component
to the factories outside of the USA by supplying the distribution copies of
Windows. The Supreme Court decided that it was not the gold disk or electronic
communication of the Windows software to be burnt on to the install disk that
comprised the infringing component, but the final installation medium itself, as
used by the computer manufacturers to install Windows, that infringed. When that
was done outside the US courts' jurisdictions, it was not covered by US patent
law. Here's what they said about that:Because it is so easy to
encode software’s instructions
onto a medium that can be read by a computer,
AT&T
intimates, that extra step should not play a decisive role
under
§271(f). But the extra step is what renders the
software a usable, combinable
part of a computer; easy or
not, the copy-producing step is essential. Moreover,
many
tools may be used easily and inexpensively to generate the
parts of a
device. A machine for making sprockets might
be used by a manufacturer to
produce tens of thousands of
sprockets an hour. That does not make the machine
a
“component” of the tens of thousands of devices in which
the sprockets are
incorporated, at least not under any
ordinary understanding of the term
“component.” Congress, of course, might have included within §271(f)’s
compass,
for example, not only combinable “components”
of a patented invention, but also
“information, instructions, or tools from which those components readily may
be
generated.” It did not. In sum, a copy of Windows, not
Windows in the abstract,
qualifies as a “component” under
§271(f).
That case seems to be
where the Supreme Court decided that it was a contributory infringement to
provide installation media for software that would provide the patented
functions when installed on a computer.
There are three mortal flaws to
the decision,
Functions are patent-ineligible abstract ideas
according to §101 and judicial exclusions. (Patents that don't show that the
invention is in the means - the software - fail §112. and just leave functions
without means. Patents cannot provide both functions and means employing
software in a way that encompasses every known software language, operating
system and processor.) §112(f) Element in Claim for a
Combination.
— An element in a claim for a combination may be expressed
as a means or step for performing a specified function without the recital of
structure, material, or acts in support thereof, and such claim shall be
construed to cover the corresponding structure, material, or acts described in
the specification and equivalents thereof.
If the specification
does not specify the means of providing the function by installing software on a
computer such that one skilled in the art of writing software can do it, it
fails this section.
Computer science tells us that the purpose of a
computer is to execute instructions for the manipulation of data. Installing
software does not change the instruction set of the known machine and is not,
legally, an improvement to it under §101.
Software execution is
process/method. §101 does not allow for an invention to be a process/method
invention and a machine invention. A process/method can only be infringed by a
person carrying out the protected process. The machine is not a protected
component of the process.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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Authored by: GaryD on Monday, June 17 2013 @ 05:30 AM EDT |
Having to install software before use is a relatively recent phenomenon. Before
the provision of fast hard drives in most computers, you'd usually load a
program, use it, and then reset or switch off the computer, at which point it
would go back to its original state. The home computers of the 80s loaded
programs from a cassette tape, for example...
And of course you can nowadays run quite a lot of stuff directly from a USB
stick, CD, DVD, or some other removable medium. All installing software does is
make a copy of the program on the hard drive or other persistent storage that's
easier to access. It's not as if a hard drive is necessarily an integral part of
a computer either - it can be removed and added to another computer!
So the idea that software installation does anything special that suddenly makes
a program patentable is completely at odds with the very basics of how
general-purpose computers work. If that's the best argument that pro-software
patent people can come up with nowadays, it's only a matter of time before they
lose the battle completely.
---
Gary Duke[ Reply to This | Parent | # ]
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Authored by: Anonymous on Monday, June 17 2013 @ 09:10 AM EDT |
In
Mayo the Supreme Court clearly says:
simply implementing a
mathematical principle on a physical machine, namely a computer, was not a
patentable application of that principle
So... "implementing
software on a computer creates a new machine" may still be functioning
Law in light of the above. But the defendant only need show the software only
implements a math algorithm and it's not patentable - whether or not you add it
to a computer.
RAS[ Reply to This | Parent | # ]
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Authored by: Anonymous on Tuesday, June 18 2013 @ 07:15 AM EDT |
And Gene is right. That's the way that the law reads right now.
I like Gene. He isn't perfect, but he's willing to discuss the issues. The
problem is he usually gets people who drop in, "Claim Software is
Math"
and then disappear. This isn't everybody, but it happens often enough.
That doesn't really have any value in educating anyone. A long, sustained
interaction (done politely) has far better results.
Wayne
Http://madhatter.ca
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