Wednesday, November 12, 2008

Academic Podcast Discusses Bilski



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4 Comentários:

Tim McCarthy said...

I wanted to download this podcast to my iPod, to listen to while on the train. When I tried to download the podcast in Safari, Apple's browser, nothing happened. Oddly enough, the podcast downloaded uneventfully in Explorer.

Tim McCarthy

Carl Strathmeyer said...

I was puzzled by a comment by one of the participants in the podcast panel (forget which person). He noted that the PTO has continued to issue "software on a disk" patents and that these would apparently continue to issue under the Bilski precedent.

As a computer professional (but not a lawyer, as may become evident below), I can't understand the logic of that. Software on a disk is nothing more than a set of instructions written on media. By definition, the instructions must be written in an unambiguous and generally-known language. Functionally identical instructions could be written with a pencil on paper (and in fact are, every day, by programmers doodling their ideas).

Instructions on paper can be converted easily to instructions on a disk and vice-versa by anyone skilled in the art of computer programming.

Rhetorical question: So why is software-on-a-disk patentable and the same method written in ink on paper is not? Conversion of ink-on-paper methods to software is not usually innovative. If the conversion is innovative, the innovation consists of a novel algorithm (and thus not patentable under 101), not in the conversion process itself.

My conclusion: A reasonable distinction between software-on-a-disk and ink-on-paper is impossible. They are conceptually and functionally the same.

This is but one inconsistency in current case law. Seems to me that we are a long way from getting consistent case law on patentability of methods.

Two-Seventy-One Patent Blog said...

They are referring to Beauregard claims (see, where software is claimed as a manufactured product, e.g.,:

"a program storage device readable by a machine, tangibly embodying a program of instructions executable by the machine to perform method steps comprising . . ."

Anonymous said...

Maybe the dilemma is that the EPO has no 101 problem with Beauregard claims, and the USPTO doesn't relish being more anti-Applicant than the EPO?.



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