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June 16, 2005

A software patent puzzle (part 2)

Glen Secor posted a thoughtful comment in response to part 1 of this entry. Now, as a result of my posting and Glen's additions, we have four x-ray clarification boxes that have the exact same externally-observable behavior, but that differ in the following ways:

(1) the first is powered by human-designed circuitry;
(2) the second is powered by a laptop running software written by a human programmer;
(3) the third is powered by the same software as the second, except that this software was "written" by other software (e.g., a genetic algorithm) rather than a human; and
(4) the fourth is powered by x-ray clarification gnomes.

Again, I'll ask: is there any basis for granting patent protection to some of these boxes but not all of them? Patent law protects (1) products and processes that are (2) new and (3) useful.

(1) All of the boxes are products (with the possible exception of the gnomes, who I'll ignore for now).

(2) All of the boxes are new (based on the way I've set up the hypothetical).

(3) Are the boxes useful? (Do they satisfy patent law's "utility" requirement?) If clarifying x-rays is "useful," then all of the boxes are useful. If clarifying x-rays is not "useful," then none of the boxes is useful.

This hypothetical appears to demonstrate that whether a device is a new and useful machine for purposes of patent law can't depend on either: (1) what's inside the device (e.g., hardware or software); or (2) how the device was designed (e.g., by a human or by software). Therefore, if there's a reason for objecting to software patents and not to hardware patents, or for objecting to patents on computer-designed machines and not to patents on human-designed machines, it must lie elsewhere.

In other words, what is the controversy about software patents really about?

Posted by Robert at June 16, 2005 9:18 AM
category: Software Patents


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