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Software is very much an implementation of an idea or ideas that are rather tangible.

Software is very much an implementation of an idea or ideas that are rather tangible.

Posted Nov 6, 2012 17:26 UTC (Tue) by southey (subscriber, #9466)
In reply to: Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them (Wired) by fest3er
Parent article: Let’s Limit the Effect of Software Patents, Since We Can’t Eliminate Them (Wired)

I do agree that generic software patents that are more ideas than implementations (such as using an icon representation of some file instead of the actual file) should not be patentable.

Actually I find it more interesting that software is copyrightable but a recipe is not. Yet it is possible to patent a recipe and so it makes sense that software should be patentable. But obviousness and uniqueness need to be held to strict standards especially with the Benson and Mayo decisions to ensure that the specific implementation rather than the actual idea is being patented.


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Software is very much an implementation of an idea or ideas that are rather tangible.

Posted Nov 6, 2012 19:28 UTC (Tue) by wahern (subscriber, #37304) [Link]

A simple recipe is not copyrightable because a simple recipe describes a very particular end product, and there's only a single recipe which can produce that end product. You can't change "1/4 cup of sugar" to "1/8 cup of sugar". Therefore, to copyright the recipe would be to, effectively, create a monopoly on that end product. Back in the old days judges still believed they had the power to prevent absurd legal outcomes, and they thought it absurd--or at least unintentional--that copyright could be wielded in such a way to restrain commerce and transfer of knowledge.

Any piece of software which, like a simple recipe, cannot be expressed any other way is, likewise, not copyrightable. Theoretically. Likewise, there undoubtedly exist many recipes which are copyrightable, presuming they're creative and expressive enough, and are not the only way to express the ingredients and method of preparation. For example, a method of preparation written in iambic pentameter, perhaps with some other flourishes for good measure. You would be free, of course, to extract and copy the simple recipe from such a work.


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