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Patents must also be "non obvious"Patents must also be "non obvious"Posted Mar 5, 2009 10:36 UTC (Thu) by forthy (guest, #1525)Parent article: SCALE7x: Courts have new "teeth" to limit software patents
IANAL, but adding into a claim that software "runs on a computer" does not make it an invention, because running software on a computer is something everyone skilled in the art can and will do. It is also too general to suit the "particular" test. That software affects the (electrical charge) state of a computer is well-known; this effect however is a consequence of the way software is implemented, not of the software itself. It looks like the Bilski test is similar to the judgement of the German patent office, which says that software can be part of a patented solution, but only when this solution is in total a patentable solution, so in total is new, an innovation, and technically, not just the software on its own. Typical example is an ABS system: ABS systems have been in use for nearly 100 years now (starting 1920 in aircrafts), and using a software for the regulation algorithm made them small and cheap enough to fit in a car. Now that is an innovation worth a patent, according to these tests: Removing a number of mechanical components by replacing them with a computer and software and thereby make ABS feasible for cars, but leaving enough mechanical components in the system that it is not just another general purpose computer with typical IOs. Electric cars probably will change that picture, because now the electric motor which is used for acceleration and breaking is mainly controlled by a generic three-phase AC supply, which, when combined with a computer, is pretty much a general purpose motor control device, and ABS is just one algorithm (together with ESC, TSC, etc...), or may not even show up as algorithm of its own. The test in my words: If you just change the software and leave everything else the same, you are using a general purpose hardware, and the new software alone does not constitute a patentable invention - because it is not technical. Combining it with off-the-shelf general purpose technical hardware does not constitute an invention (because this step is obvious), even though it makes the combined system technical. Note that this is all subject of lawyers and patent officers, so in reality, things are different. While the German rules don't allow software patents, and courts are unwilling to enforce them, the patent office grants them nonetheless, if you just add to your claim that it runs on a general purpose hardware. That's why things like MP3 are patented even in Germany.
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