Re: what does a patent restrict?

On Fri, 08 Oct 1999, Bruce E. Hayden <bhayden[_at_]ieee.org> wrote:
>
> On Thu, 7 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
> >
> > The truth is exactly what I wrote. Software is a written
> > description of an algorithm(s), generally designed so that a machine
> > will be able to follow it. (Don't know of any cases where descriptions
> > that machines can't follow are considered software, but I wouldn't rule
> > it out).
>
> But such would be much less likely patentable, though I suspect
> that their protection under copyright would not suffer that much.
>
> > The description is not the device. The computer simulates the
> > process (or implements it if you prefer) by following the description
> > provided by the software. The description is expression (which is why
> > it's copyrightable in the first place), protected by the 1st amendment.
> > There is no process that is infringing _until_ the computer starts
> > executing the expression.
>
> Not exactly correct from a couple of points of view. First, as noted
> elsewhere by both Andy and me, software may be claimed (and indeed I
> suggest should be claimed if done competently) as encoded or whatever
> in an article of manufacture (floppy disk, etc.). Also, claims are
> often written to claim a system including the software loaded in some
> sort of memory (disk, RAM, etc.). But technically, you are right,
> when software is claimed as a "method" or "process", then it typically
> cannot be directly infringed without being executed.
>
> Also, it is not clear exactly how much software in textual form
> is protected by the 1st Amdt. For example, it clearly is subject
> to both copyright and patent protection. Thus, you cannot use
> the 1st Amdt. as justification in ignoring a patent or copyright.
>
> > > You directly infringe a patent by making, using, offering for sale
> > > or selling (collectively, "practicing") THE CLAIMED INVENTION.
> >
> > Last time I checked, algorithms alone cannot be patented, though
> > specific processes they are used for can be. Is my understanding in
> > error? As far as I know, you still can't patent expression alone,
> > only the process. As I said in another post, contributory infringement
> > is a different matter.
>
> Your understanding is a bit simplistic. It really depends on how
> you define "algorithm". An algorithm is not unpatentable (any more)
> just because it is an algorithm. Rather, a more complex investigation
> is required. A fairly accurate (though still a bit too limited) view
> of the current state of the law (at least as the PTO sees it) can be
> found at:
>
> http://www.uspto.gov/web/offices/com/hearings/software/analysis/computer.html

This is one of the most fascinating and snakes-and-ladders dialogues I've seen on the board. Thanks to everyone who is contributing. (Trouble is -- I'm starting to lose the thread a bit as I had to miss a few in the middle. I'll catch up eventually...)

CS

"Galvanising Ideas"

Colin Seeger, Consultant, Management of Intellectual Property. P.O Box 3227, Tamarama, Sydney, Australia 2026 Tel: (61) (02) 9365 1186, Fax (61) (02) 9365 1286 <seeger[_at_]ozemail.com.au> Received on Tue Oct 12 1999 - 13:12:42 GMT