LCE: All watched over by machines of loving grace [LWN.net]

LCE: All watched over by machines of loving grace

Posted Nov 19, 2012 15:42 UTC (Mon) by nybble41 (subscriber, #55106) [Link]

Is there any change you could possibly make to avoid infringing the patent, preserving the device's intended functionality, which does not involve altering the software? No? Then the subject of the patent is the software, not the hardware or even a specific combination of hardware and software.

Patents are supposed to be non-obvious, meaning that they cover one solution out of many, not the only possible solution to a given problem. The real subject of a patent is the minimal aspect or aspects which an alternate, infringement-free solution must avoid duplicating--in this case, the software.

patenting printers vs patenting software

Posted Nov 19, 2012 16:50 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

A better question along those same lines is: Can you completely replace the software and still infringe the patent? Yes? Then the patent covers something other than the software.

When people who don't already know better read "patent for a piece of software," they can easily believe that the patent covers a particular piece of code, or disembodied algorithm, and they reach incorrect conclusions about how patent law works. In fact, I see such people scratch their heads and wonder how such patents could possibly make sense.

But if they think of the patent as for a kind of printer, then it's easy to see how one might apply law that applies to a way of feeding paper through a printer using gears to a way of deciding what to print using software.

patenting printers vs patenting software

Posted Nov 19, 2012 19:20 UTC (Mon) by nybble41 (subscriber, #55106) [Link]

>> Is there any change you could possibly make to avoid infringing the patent, preserving the device's intended functionality, which does not involve altering the software? No? Then the subject of the patent is the software, not the hardware or even a specific combination of hardware and software.
> A better question along those same lines is: Can you completely replace the software and still infringe the patent? Yes? Then the patent covers something other than the software.

Here is my truth table for classifying patents:

HW SW I | Classification
--------|----------------------------------------------------------
0  0  0 | impossible (no change yet doesn't infringe)
0  0  1 | inconclusive; infringes due to HW, SW, or HW+SW
0  1  0 | SW patent; changing just the software avoids infringement
0  1  1 | not SW patent; infringes even if SW changes
1  0  0 | not SW patent; can use same software without infringing
1  0  1 | SW patent; changing hardware does not avoid infringement
1  1  0 | inconclusive; infringement depends on HW, SW, or HW+SW
1  1  1 | impossible (changed both yet still infringes)

A "1" in the two two columns indicates a change to avoid the HW or SW aspects of a patent; a "1" in the third column reflects whether the result still infringes. Your question was 011, and mine was 101; the two are compatible, approaching the problem from opposite sides, but neither is complete.

Based on the above table, a better combined rule would be that a patent describing both hardware and software is "for a piece of software" if and only if changing just the software is sufficient to avoid infringing the patent (010), or changing just the hardware is insufficient (101).

All of this assumes the altered design still fulfills its original purpose; the possibility of modifying a printer into a toaster to avoid infringing a patent doesn't count.

patenting printers vs patenting software

Posted Nov 27, 2012 2:20 UTC (Tue) by ncm (subscriber, #165) [Link]

"...they reach incorrect conclusions about how patent law works."

They may reach incorrect conclusions about how patent law is imagined, or perhaps intended(*), to work, but largely correct conclusions about how it does, in fact, work. How it does work does not, in fact, make sense. It's not hard to confuse people with examples of how to apply something that does not actually make sense.

(*) Intended by whom?