Robert,

You have a law professor's flair for point-proving hypotheticals. Assuming patentability of the circuit-driven device, I cannot think of a reason why the computer-driven device would not also be patentable. The fact that one machine uses circuitry designed by an electrical engineer and the other uses software designed by a computer engineer seems irrelevant. The bottom line is that in each case a human being has rigged a machine to use the same algorithm to accomplish the same result -- a clarified x-ray.

Both devices in the hypothetical utilize an automated process. There may be a difference as to the degree of automation used by each machine, but the basic human/machine dynamic is the same in both. Indeed, the first machine uses circuitry directly, while the second uses a software code to drive someone else's (i.e. the chip manufacturer's) circuitry. Basing patentability on the degree of automation involved, i.e. on when in the process human input "ends" and machine process "begins" seems like a surefire path to a very slippery slope.

Let's extend the hypothetical to include a third machine, using the same algorithm and producing the same result as the first two. The third machine, like the second, utilizes a laptop computer, but in this case the software was actually "written" by another software program. More specifically, let's assume that the algorithm is the key to the process and that the laptop in the third machine executed an independent program to come up with the optimal algorithm, which, again, turns out to be the same algorithm as is used in the first two machines.

Any effort to set a threshold, whether quantitative, qualitative or both, below which "human input" becomes insufficient for patentability, would be hopelessly arbitrary. Human make machines. The machines that humans make do things. The things that we can make machines do are becoming more and more sophisticated. In fact, as indicated by the hypothetical third box, technology can be set in motion to produce new technology. One is reminded of the "prime mover" theory of divinity. If a human being sets technology in motion, the resulting automation, even automation which is layers removed from the initial technology, seems to me to be the product of human effort. In the hypothetical, circuitry and software are basic elements of the machines, but at the end of the day each is but a machine running a single clarification algorithm.

Now, if you were to open one of the boxes to find a team of x-ray clarification gnomes processing each x-ray as it comes through...

Glen