On 7/19/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Arnoud Engelfriet wrote: > >I agree with you that the distinction may seem artificial. But it > >does seem logical to me to say "you can't patent A XOR B but you can > >patent a computer program that does that." > If you can patent the class of computer programs which do A XOR B, > you have patented the abstract operator which does that.
Arnoud said that computer programs as such are not patentable subject matter under the EPC, and as I read it that's also true in the US under Alappat's "useful, concrete, tangible result" test. You can patent a computer program that does A XOR B in its character as a solution to the problem of encrypting messages encoded as digital data, but that same program used to achieve some unrelated tangible result isn't covered by the patent. Arnoud, am I getting your argument straight? > >Then the formula remains > >public domain; you just can't make, use or sell a program that > >implements the formula. Were the formula patented, then you couldn't > >even publish a textbook. > Unfortunately, that's a distinction without a difference. If you're > prohibited from making a computer program implementing the algorithm, you're > prohibited from writing a formal description of the algorithm, which is a > standard textbook technique. (A computer program *is* a formal description > of an algorithm.) If you're prohibited from selling such a program, you're > prohibited from selling such a textbook. Patent is not copyright; you don't obtain a monopoly on describing your method, you obtain a monopoly on its commercial application. No patent prohibits you from making a computer program implementing any algorithm you like; but if you sell it as a solution to the problem addressed in the patent, without authorization from the patent holder, you are infringing. The same goes for selling its output, if that's covered by the patent -- compare against the enforcement of chemical process patents. So I think Arnoud's point is that, if a formula or other abstract idea were patentable without any indication of the result being achieved, then a textbook would be just as much an infringement of this counterfactual patent as a computer program or a machine that embodies it. His "make, use, or sell" language is a little bit over-broad, but essentially accurate insofar as the maker may be liable for infringing use of the program by third parties even if he cannot be demonstrated to have made infringing use of it himself or to have profited from its sale. > The use prohibition is at least different: if only the use prohibition were > present, you could indeed publish a textbook, but nobody would be allowed to > use its techniques without a license. If people bought the textbook principally so they could copy down sections that amounted to an implementation of the patented invention, and proceeded to use them in an infringing way, then AIUI you could be liable for contributory infringement. Don't cry First Amendment, either -- it's not the writing and publishing that are getting you in trouble, it's the collusion in tortious and/or criminal activity, and freedom of speech/press doesn't cover that any more that it exonerates a mafia don who orders a hit with a little help from a printing press. > According to this "distinction", we could distribute Debian > as a "computing textbook" rather than as a "system", and we would then be > exempt from these patent considerations. Doesn't make a bit of difference what you call it. What matters is what it is and what people use it for. > (The current US rule is that that every such patent is for a "program plus a > generic computer", so this should actually work. Only the silly people who > use Debian on their computers who are violating the patent, although Debian > might be in trouble for encouraging them. Actually, the users might be fine > too, because they're not using the process on an industrial scale. Hey -- > there's a solid line of argument: the program itself doesn't violate > anything, only the program plus a computer, and it's only combined with the > computer at the end-user's house. This is silliness, of course, but that's > what you get for making a distinction without a difference.) That is not the current US rule as I understand it. Despite the patent-attorney-encouraged "computing means" shibboleths of the 80's and 90's, applications of software techniques to practical problems are just as patentable when stated using "process" lingo as when using "machine" lingo, certainly now (per AT&T v. Excel) but AFAICT all along. The only appellate precedent I have ever seen alluded to which suggests otherwise is an administrative appeal regarding "the Koo patent"; I'll track it down when I have time. As for the "personal use" exemption: thread at http://lists.debian.org/debian-legal/2005/07/msg00267.html . My own opinion (IANAL, TINLA) is that the statutory exemption wouldn't protect Debian but that Thomson's declaration that they have no objection to personal use of LAME might, especially if Thomson and Debian can discuss the matter directly and find enough common ground. [snip stuff which doesn't need to be archived on the web forever once, let alone twice] I am glad that I do not live in the dystopic fantasy world you describe, with incompetent judges obsessed by sophomoric deductions from Plato and easily led by the nose. Most judges are not software engineers but few are utter fools, and to argue otherwise you're going to need to adduce real evidence. Cheers, - Michael
