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Hold on. You can't just say: Computers are implemented physically, so grounding a patent in a computer-based implementation makes it a physically-grounded paten

by fpgeek 12y ago

Hold on. You can't just say: Computers are implemented physically, so grounding a patent in a computer-based implementation makes it a physically-grounded patent. If you want something physically-grounded you'd have to say: I want to implement this idea on that specific computer with these specific physical manifestations. And even if you got that patent, it would be effectively worthless. Changing what we view as trivial details of the implementation (e.g. swapping a Pentium for a Pentium Pro) would totally change the physical manifestations at the level of electrons and molecules. In other words, that would completely avoid any claims in the patent that are described at the physical level. And the minute you retreat to considering claims at the functional level (i.e. what our collections of electrons and molecules mean) you're no longer talking about doing something physical to achieve a useful result: you're talking about combining abstract ideas with a wide range of possible physical implementations to achieve a useful result, which is something entirely different.

throwawaykf05 12y ago
This is true for most physical inventions. Machines, for instance, may be claimed as a particular configuration of physical components, but the invention is not restricted to any precise composition materials used in those components unless the claims require it. Indeed, claims often don't even mention the materials being used. For instance, you can use any comparable material or fluid to provide the necessary mechanical support or hydraulic force. Replacing, say, steel (or oil) with any other alloy (or incompressible fluid) with comparable properties will not allow you to sidestep the essence of the invention. This is analogous to switching one processor to another: it makes no difference because they are equivalent. As such, pretty much all patents (except maybe those on compounds) are abstract to some degree: they all claim a useful application with a wide range of possible physical implementations. This is covered by the Doctrine of Equivalents, which specifically exists to prevent non-infringement through trivial workarounds. The counterbalance to this is that in examination, claims are given their broadest reasonable interpretation to find as much prior art as possible. For instance, examiners are free to use equivalent elements in the prior art to read on those in the claims.
- AnthonyMouse 12y ago
  You're trying to simultaneously claim that the machine is what makes it patentable as a result of its physical operation and that the machine is an abstraction completely divorced from its physical operation. Those two things don't go together.
  - throwawaykf05 12y ago
    No, let me do a diff on your statement to highlight my meaning (diff'd words in italics) I'm claiming that: 1) ... the machine is what makes it patentable as a result of its physical operation and 2) The patent on that the machine is an abstraction largely (to the extent it concerns irrelevant specifics) divorced from its physical operation. You see the difference now? Those two arguments reconcile because they address different things. To see what I mean, do a search on google patents for, say, "hydraulic modulator", and count how many have claims that specify the precise materials they use. Without such details, these claims are about as abstract as software claims.
    - AnthonyMouse 12y ago
      The difference is that in the software case the patent claims are completely divorced from the computer's physical operation. You could be using a gravity-based computer built out of planets and stars and it would infringe all the same. Because the computer isn't required to do something, it is only required to calculate something. Let's try this another way. You understand that it is possible to build a computer out of anything. Let's build a computer out of nothing. We want to perform a calculation without building anything whatsoever, so all we are going do is observe nature. There are any number of ways to represent a calculation. If there are three pigeons and five more arrive then you have only to observe the resulting number of pigeons to learn the sum of three and five, etc. Nature is going to do lots of calculations we don't care about the answers to, so we ignore those and only pay attention to the ones necessary according to the algorithm to be executed. By doing this you can execute any algorithm. Doing strictly nothing but observing natural phenomena. There is no machine. Because the result you are trying to obtain is not a thing, it is a representation of information. And information can be encoded into anything and the representation is defined by the context. By changing the context -- an entirely intellectual undertaking -- you determine what information is represented by the physical state. What the machine (or the birds or the stars) do is comprehensively irrelevant, as long as things are happening you can use them to represent the execution of computer software.

by fpgeek 12y ago

throwawaykf05 12y ago

This is true for most physical inventions. Machines, for instance, may be claimed as a particular configuration of physical components, but the invention is not restricted to any precise composition materials used in those components unless the claims require it. Indeed, claims often don't even mention the materials being used. For instance, you can use any comparable material or fluid to provide the necessary mechanical support or hydraulic force. Replacing, say, steel (or oil) with any other alloy (or incompressible fluid) with comparable properties will not allow you to sidestep the essence of the invention. This is analogous to switching one processor to another: it makes no difference because they are equivalent. As such, pretty much all patents (except maybe those on compounds) are abstract to some degree: they all claim a useful application with a wide range of possible physical implementations. This is covered by the Doctrine of Equivalents, which specifically exists to prevent non-infringement through trivial workarounds. The counterbalance to this is that in examination, claims are given their broadest reasonable interpretation to find as much prior art as possible. For instance, examiners are free to use equivalent elements in the prior art to read on those in the claims.

AnthonyMouse 12y ago
You're trying to simultaneously claim that the machine is what makes it patentable as a result of its physical operation and that the machine is an abstraction completely divorced from its physical operation. Those two things don't go together.
- throwawaykf05 12y ago
  No, let me do a diff on your statement to highlight my meaning (diff'd words in italics) I'm claiming that: 1) ... the machine is what makes it patentable as a result of its physical operation and 2) The patent on that the machine is an abstraction largely (to the extent it concerns irrelevant specifics) divorced from its physical operation. You see the difference now? Those two arguments reconcile because they address different things. To see what I mean, do a search on google patents for, say, "hydraulic modulator", and count how many have claims that specify the precise materials they use. Without such details, these claims are about as abstract as software claims.
  - AnthonyMouse 12y ago
    The difference is that in the software case the patent claims are completely divorced from the computer's physical operation. You could be using a gravity-based computer built out of planets and stars and it would infringe all the same. Because the computer isn't required to do something, it is only required to calculate something. Let's try this another way. You understand that it is possible to build a computer out of anything. Let's build a computer out of nothing. We want to perform a calculation without building anything whatsoever, so all we are going do is observe nature. There are any number of ways to represent a calculation. If there are three pigeons and five more arrive then you have only to observe the resulting number of pigeons to learn the sum of three and five, etc. Nature is going to do lots of calculations we don't care about the answers to, so we ignore those and only pay attention to the ones necessary according to the algorithm to be executed. By doing this you can execute any algorithm. Doing strictly nothing but observing natural phenomena. There is no machine. Because the result you are trying to obtain is not a thing, it is a representation of information. And information can be encoded into anything and the representation is defined by the context. By changing the context -- an entirely intellectual undertaking -- you determine what information is represented by the physical state. What the machine (or the birds or the stars) do is comprehensively irrelevant, as long as things are happening you can use them to represent the execution of computer software.