Archive of UserLand's first discussion group, started October 5, 1998.

Re: Spawn of the Devil?

Author:Gary Robinson
Posted:7/25/2000; 1:19:09 PM
Topic:Spawn of the Devil?
Msg #:19054 (In response to 19045)
Prev/Next:19053 / 19055

This is an interesting and subtle point.

I'm assuming you're not referring to a case such as checkbooks, where a checkbook already exists physically and then you implement the exact same thing in software, which would be a very obvious thing to do... as you know a requirement for having a patent upheld is that it is nonobvious.

But suppose there were no checkbooks in the world, and somebody thought of the concept and patented the process of a machine that does that functionality, or more specifically, the set of implementations of such machines that involve using software to make it happen.

You end up with a physical object that has a desired functionality.

Just as a checkbook cover is a physical object that has a desirable functionality. The "checkbook" is implemented in wires and a cpu; another part of the implementation is a disk with a series of bits that interacts with the wires and cpu to cause the whole system to display the desired functionality.

To the judicial system, it isn't clear why there's a difference in patentability between the checkbook cover and the machine that performs checkbook functionality. (Again, we're assuming that this really was a new idea, not just doing a common real-world process in software, which is not creative.)

As a software developer for 20 years, I experience writing software more as a form of writing than as manufacturing a physical object.

But suppose I have an idea for a better checkbook cover. Probably, I will write down some instructions on how to make it. That's also writing. That doesn't mean my invention shouldn't be patentable. So I tend to agree with the judicial system's judgement, to date, that software is not fundamentally different from any other form of invention.

I'd be very interested to see a clear and concise argument that distinguishes it. Maybe sometime a judge can be convinced that such an argument is correct, but the sum output of all such arguments to date is that they have been rejected by the judicial system. And I don't think that all judges are idiots or unable to grasp the issues. I've read a fair amount of software patent caselaw, and I think that (at least) the higher-level judges are pretty capable of understanding what's involved.

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