🚀 go-pugleaf

Terry Ritter:
   >> In fact, "obviousness" is technical term in patent law and the
   >> examination process.  Obviousness can be (and probably *must*
   >> be) legally argued by examining various indications, such as:
   >> Unexpected Results, Previously Assumed Unworkability, Previously
   >> Unrecognized Problem, Omission of Element, Unappreciated
   >> Advantage, Long-Felt and Unsolved Need, Contrarian Invention,
   >> New Principle of Operation, etc.

Dan Bernstein:
   >Actually, ``obvious'' is not a term defined by the courts,

Terry Ritter:
[35 USC 103, 1986 supplement]

      "A patent may not be obtained though the invention is not
      identically disclosed or described as set forth in section 102
      of this title, if the differences between the subject matter
      sought to be patented and the prior art are such that the
      subject matter as a whole would have been --> OBVIOUS <-- at the
      time the invention was made to a person having ordinary skill in
      the art to which said subject matter pertains."  (emphasis mine)

   "Obviousness" is the third of the three major legs of patent law,
   and is INDEED defined and interpreted in case law and examination
   practice.

Ok, enough context.

The above is the only usage of the word "obvious" in title 35 of the
United States Code.  I, for one, don't see how this defines the term
"obvious".  It definitely is not defined here the way Terry Ritter
defined it in the opening quote.

   But if *an entire program* were claimed, with all of its details
   and features, it would be *easy* to get around that claim merely by
   *subtracting* a feature from the program.  The program could then
   be expanded in a different way without infringing that claim.

But if a general description of "*an entire program*" were claimed,
one which says roughly "this process takes input, transforms it
according to the above claim, and produces a result".  What feature
may be subtracted here?

   There is no law that now specifically says "software patents" can
   be granted.  There is no law that allows the digital electronic
   devices (which we computer types call "hardware") to be patented
   either.  There is just the overall law for all types of patents.
   Which is so general in its phrasing it might be construed to allow
   the patenting of thought processes.  [There is no law that now
   specifically says "thought patents", either.]

      Does "software" function only on a IC "chip," or would a
      random-logic computer run software?  Naturally we take the
      second case, but then how can we tell the difference between a
      computer running software and any other logic machine?  If we
      can't, would all hardware digital logic devices lose patent
      protection?

It's very simple.  Take a device.  Is it patented?  If the device is
not patented, then there is no patent.  If the device is patented,
then there is a patent.

      Is machine code in ROM "software"?  If so, then are all digital
      hardware devices which use ROM using "software" (and would they
      thus lose patent protection)?

It's very simple.  There is no general patent on "ROM".  There may be
patents on specific design processes for ROMs, but those would not
apply to ROMs built using other design processes.

      Is machine code in RAM "software"?  If so, then <as above>.  In
      addition, it would be possible to get around a <ROM = hardware>
      philosophy, simply by copying ROM to RAM.  (This is actually
      done now in most 386 machines.)

Yes, machine code in RAM is "software".  There is no <ROM = hardware>
patent to worry about.

      Is machine code in random logic "software"?  If so, then,
      assuming an infinity of possible software instruction sets, how
      could any digital logic hardware device retain patent
      protection?

If the "machine code in random logic" offers no significant advantages
over any of the other of these "infinity of possible software
instruction sets", where's the innovation?  What difference does it
make if non-innovative digital logic hardware retains no patent
protection?

   So, to what extent would trying to change the situation for
   "software patents" create unfairness or inconsistency for the
   hardware guys, or problems in other ways?  Until someone can start
   to define, SPECIFICALLY, what a "software patent" would be, we
   cannot begin to understand the overall ramifications of such a
   change.

Look, patents are supposed to be a reward for coming up with something
new and innovative.  Trying to make patents apply to run-of-the-mill
hardware designs, which can be duplicated trivially using other
techniques, is fine.  But to say that "well, it's too easy to design
something just as good as my design, so you can't use competitive
designs" is just plain silly.

-- 
Raul <rockwell@socrates.umd.edu>