patenting printers vs patenting software [LWN.net]

patenting printers vs patenting software

Posted Nov 19, 2012 19:20 UTC (Mon) by nybble41 (subscriber, #55106)
In reply to: patenting printers vs patenting software by giraffedata
Parent article: LCE: All watched over by machines of loving grace

>> 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.

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