From: mcgregor@netcom.com (Scott Mcgregor)
Subject: Re: Patents:  What they are.  What they aren't.  Other factors.
Date: Tue, 29 Sep 92 07:04:33 GMT
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Distribution: usa

In article <1992Sep26.161204.24573@rwwa.COM> witr@rwwa.com writes:

>  a) Software cannot be both of new, and usefull.
>  b) All software is obvious.
>
>It is difficult for be to swallow either of these claims.  Perhaps
>you or someone has a convincing argument supporting them?

It seems to me that there is at least one other reason being raised
why sotware *cannot* be patentable, and that is the one suggested when
Withrow wrote:  

>In the case of a software (algorithm) patent one could point to the
>computer running the software as the practice, and the software as
>the idea, but it isn't quite so satisfying, is it?...

Some claim software cannot be patentable because it isn't reduced to
practice, i.e. when it is just an idea. Bernstein for instance has in
the past suggested a "mental test", i.e. performing the steps in your
head.  He (and others) hold that if you can perform it in your head
without any affect in the real world it is of the realm of an idea and
should not be patentable. This seems reasonable, and I can see no
reason why any pro-patent advocate should object.  The question then
turns to what happens when the software is embodied in a computer.
Now real physical effects are happening: digital signals on a control
line in a modem are changing, magnetic polarities in disks are
changing, phosphorescent displays are changing all according to
certain processes. No mental only effort (except maybe psychokinesis)
can effect such physical world state changes.  But a physical world
embodiment can.  If a anti-patent advocate would wish to have software
per se unpatentable, but computer hardware controlled by software
being patentable, then I don't think any pro-patent advocates would
object. But it seems that this is not what such anti-patent advocates
want. Mr. Bernstein doesn't just want to be able to perform his
compression algorithm in his mind, or even directed to the /dev/null
device. He'd like to be able to use it in his computer, or modem, or
disk drive and then it is back in the physical process realm.

This is what has seemed somewhat muddy to me about some of the
anti-patent arguments that have appeared here: They rightly ask for
software to be exempted from patenting because it is only an
unembodied idea, but then they want the embodiment to be struck down
too, because the process was mediated with software rather than say
equivalent analog or digital hardware.   But ALL PROCESS patents have
an idea in them, perhaps even all device patents as well.  The only
consistant position would then seem to be to outlaw all PROCESS
patents, not just software patents.  Some have claimed this is
acceptable, indeed that all patents should be outlawed.  But there
seems less support for such a broad ban than on one limited to
software even if the software only limitation makes sense only if you
-- 

Scott L. McGregor		mcgregor@netcom.com
President			tel: 408-985-1824
Prescient Software, Inc.	fax: 408-985-1936
3494 Yuba Avenue
San Jose, CA 95117


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