ambiguity [LWN.net]

ambiguity

Posted Jan 2, 2026 14:12 UTC (Fri) by farnz (subscriber, #17727)
In reply to: ambiguity by Wol
Parent article: A partial ruling in the Vizio GPL suit

So I build an unpatentable machine with 1990s tech, add a modern microcontroller, and the process that was previously patentable (since the patent talks about how to do it with hardware) is no longer patent protected, because I'm simulating the patented hardware in software instead?

The patent is on a machine that does something useful - the trick you're opening up is to reimplement the patented machine using 1990s hardware and a (possibly quite powerful) microcontroller, such that the patented process is done by the microcontroller instead of being done by hardware, and the machine does not do the patented process without the software loaded into it.

This is, BTW, how we've ended up with software patents in Europe - the software in and of itself is not patentable, but the combination of software with hardware is patentable where the same combination could be achieved without the software. It's almost the exact opposite of your claim about what makes a patent a software patent - a patent is a software patent in Europe if, and only if, the implementation of the patent requires software, but the mere fact of moving a process from hardware to software does not protect you from patent infringement if the combined machine infringes the patent.

And yes, this means that "do it with a computer" is potentially patentable - as long as the patent can be implemented without the computer, "do it with a computer" is covered, too.

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ambiguity

Posted Jan 2, 2026 15:14 UTC (Fri) by Wol (subscriber, #4433) [Link]

> This is, BTW, how we've ended up with software patents in Europe - the software in and of itself is not patentable, but the combination of software with hardware is patentable where the same combination could be achieved without the software. It's almost the exact opposite of your claim about what makes a patent a software patent - a patent is a software patent in Europe if, and only if, the implementation of the patent requires software, but the mere fact of moving a process from hardware to software does not protect you from patent infringement if the combined machine infringes the patent.

At which point, when push comes to shove (if it ever does), some smartypants lawyer will successfully use that to prove "true = false". And leave the Judges with a big headache. Pity Groklaw has gone, but I suspect as soon as any of these patents are actually challenged in court (yes, I'm aware the EPO has been issuing them with gay abandon) and the patenter is asked "what, exactly, have you patented?", then the whole house of cards will come collapsing down.

Can't point you to the details, sorry, but there was a case went to USPTO some years back, where a PRO-software-patents judge said, in a concurring opinion, that he agreed with the decision that in this particular case the software could not be patented and he could not personally conceive of any situation where software could pass the patentability bar.

In court you would simply argue that you are using a load of patent-expired technology, running a list of instructions on a computer (not patentable because it's just using a computer AS A COMPUTER), to control some ancient machinery (obvious). Where in that is the patentable step? Just because the EPO has been gaily issuing "do it with a computer" patents, doesn't mean they will survive scrutiny in court.

How many patents actually survive a challenge for inventin' the bleedin' obvious? Pretty much none. My employer was sued by a (-: Norwegian Blue :-) supplier for breaching their patents - we *had* to fight. And I don't know whether they got sanctioned - I think they might have done - but they certainly got slammed for bringing a baseless lawsuit. The problem is fighting a patent lawsuit is expensive, but in our case it was much cheaper to fight than to cave. And it probably cost them their patent portfolio :-)

Cheers,
Wol