Guest Post by Michael Williams. Williams is a UK and European Patent Attorney and Partner at the London based Cleveland-IP firm.
In the book “Through the Looking-Glass”, Alice compares her drawing room to the one reflected in the mirror. She notes that everything is the same “only the things go the other way”.
In the recent Alice Corp[1] decision, the US Supreme Court set out a framework for assessing whether claims are patent eligible under 35 U.S.C. § 101. In this article I shall compare this framework with that used by the European Patent Office, and consider the similarities.
The US Alice Approach
In a memorandum dated June 24, 2014, the USTPO has set out its Preliminary Examination Instructions to the Patent Examining Corps in view of the Alice Corp decision[2]. In the Instructions, a three stage framework is set out which is summarized below:
- Determine whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does not fall within one of the categories, reject the claim as being directed to non-statutory subject matter (§ 101).
- If the claim does fall within a statutory category, determine whether the claim is directed to an abstract idea. If not, proceed with examination of the claim for compliance with other statutory requirements.
- If an abstract idea is present in the claims, determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to significantly more than the abstract idea itself. If there are no meaningful limitations in the claim, reject the claim as being directed to non-statutory subject matter.
The Examiner should then proceed to examine the claim for other patentability requirements, whether or not a rejection under § 101 has been raised.
I have illustrated the three-stage “Alice” approach in Figure 1.
The EPO approach
The approach of the EPO to claims with potentially excluded subject matter is summarised below.
- Examine the claim to establish whether it relates to excluded subject matter as such. This is done by assessing whether the claim has a technical character. If there is no technical character at all, the claim is rejected under Article 52 EPC for relating to excluded subject matter as such[3] .
- If the claim has technical character, it is examined for novelty and inventive step. In the case of inventive step, it is determined whether the invention involves an inventive step in a technical field. If the claim lacks an inventive step in a technical field it is rejected under Article 56 EPC.
In the case of a claim with a mix of technical and non-technical features, the following steps are followed when assessing inventive step[4]:
- Identify the non-technical aspects of the claim,
- Select the closest prior art on the basis of the technical aspects,
- Identify the technical differences from the closest prior art,
- Determine whether or not the technical differences are obvious.
If there are no technical differences, or if the technical differences are obvious, the claim is rejected for lack of inventive step.
I have illustrated the overall approach in Figure 2. In order to facilitate comparison, I have separated the approach into stages which correspond roughly with those of the USPTO approach. I have also assumed that there are differences between the claimed invention and the prior art (otherwise there would be lack of novelty).
Comparison of the two approaches
A comparison of the flow charts in Figures 1 and 2 shows a striking similarity between the first stages of each approach. In each case, it is in effect determined whether the claim relates to no more than excluded, or ineligible, subject matter. In both cases this acts as a filter to weed out claims which do not have any technical subject matter.
The second stages of each approach also bear comparison. In the case of the EPO, it is determined whether or not the claim includes both technical and non-technical features. In the case of the USPTO it is determined whether the claim is directed to a (non-technical) abstract idea. However, since the claim must contain some technical subject matter (or it would have been weeded out at stage one), this is akin to determining whether there is a mix of technical and non-technical features. In both cases, the second stage flags up cases where there might still be a problem with excluded subject matter.
In the third stage of each approach we come to the nub of the matter. It is here that borderline cases will stand or fall. It is therefore worthwhile analysing this stage of each approach.
In the case of the EPO approach, the technical and non-technical features of the claim are first separated out. The technical features which are not present in the prior art are then identified. It is then determined whether or not those technical features are non-obvious. In doing so, it is assumed that the non-technical features are already present in the prior art. If the technical features which are not present in the prior art are obvious, the claim is rejected for lack of inventive step.
In the case of the USPTO approach, stage three involves determining whether there are any elements in the claim which amount to significantly more than the abstract idea itself. This in effect requires two steps, as follows:
- Identify the elements which are not an abstract idea, and
- Determine whether those elements amount to significantly more than the abstract idea itself.
It is notable that step a is similar to the EPO approach of identifying the non-technical aspects of the claim.
With regard to step b, this begs the question: how much more is “significantly more”? According to the Instructions there must be “meaningful limitations” in the claim, but how meaningful do they have to be?
We can assume that the elements which must be “significantly more” than the abstract idea are technical (since otherwise the claim would have been weeded out at stage one). It is also the case that, in order to be “significantly more”, those technical elements must be meaningful. If they must be meaningful, does this mean they must contain the inventive concept?
My guess is that, in practice, persuading the USPTO to allow claims of this type is probably going to involve arguing that the elements which are significantly more than the abstract idea are somehow tied in with the inventive concept. Otherwise they would not be “meaningful”. This then starts looking very much like arguing for non-obvious technical subject matter; in other words, an inventive step in a technical field.
There will of course be differences between the two approaches, not least due an imprecise alignment of the concepts of “abstract” and “non-technical”. However it seems to me that both approaches are seeking to achieve something similar, namely, an assessment of whether the innovation itself lies in a non-excluded field.
Thus, to my mind, we are now in a situation where, in practice, the two approaches are considerably aligned, albeit “the other way round”.
As readers of the book will recall, when Alice actually goes through the looking glass, she finds it to be completely different from what she first saw. I suspect that, as case law and practice develop, we will find that USPTO and EPO practice will differ. However it is notable that, at least on the face of it, there are now considerable similarities.
= = = = =
[1] Alice Corporation Pty. Ltd. V CLS Bank International, et al
[2] http://www.uspto.gov/patents/announce/alice_pec_25jun2014.pdf
[3] Guidelines for Examination in the European Patent Office G-II, 2.
[4] Guidelines G-VII, 5.4
On Oct 14, 2014 11:09 AM, “Mark” wrote:
Dennis,
You left out an important component of the USPTO Guidance on the two part abstract idea analysis, as set forth in Mayo.
“Thus, an invention is not rendered ineligible simply because it involves an abstract concept. In fact, inventions that “integrate” the building blocks of human ingenuity into something more by applying the abstract idea in a meaningful way are eligible.”
The keyword here, as the Court has set forth, is “Integrate”. In the concluding analysis, the claims must be considered as an Integrated-whole. This is still the law.
Because any Integrated claim can be dis-integrated and described as being “directed to” an abstract idea, since all inventions are abstract ideas at their conceptual core.
Therefore attorneys and their clients must hold the PTO and the judiciary to the fire of the law and force the issue of Integration Analysis.
If an examiner, or a judge dis-integrates a claim, the question must be asked, why did you dis-integrate the claim? And where did the authority to do so come from?
If not, and this type of thinking is allowed to permeate our judicial system, all of patent law will be swallowed up into a legally and intellectually bankrupt abyss.
I’m a little unsure what you mean when you say the claims have to be considered as an integrated whole.
The Mayo framework seems, to me at least, to require considering the non-abstract and abstract elements of the claim separately.
“Taking the claim elements separately, the function performed by the computer at each step of the process is ‘[p]urely conventional.'”
Can you give an example of a claim that would fail when non integrated but would pass when integrated and explain why?
I’m just trying to understand your position.
g0 Arthur: “The Mayo framework seems, to me at least, to require considering the non-abstract and abstract elements of the claim separately.”
Yes, you are correct. However what many in the patent community fail to understand about Mayo is that in the “concluding analysis” the claims are considered as an “Integrated Whole”. You can avoid this error in reading Mayo by asking , for what purpose, or end, are the elements initially being considered separately ?
A) Is it to “dissect” the claims into abstract and non abstract elements and ignore the abstract elements?
B) Is it to “filter “out the eligible from the non eligible subject matter, such as an equation, and only give weight to the remaining eligible subject matter?
C) Is it to “carve out” the gist or underlying concept and ignore the the elements that apply the concept?
D) None of the above.
The answer is (D), none of the above.
Mayo was quite clear in explaining why the elements were initially considered separately.
“Finally, considering the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.”
They keywords are “finally” which let’s you know this is the concluding analysis, and “ordered combination”, which lets you know the claims are being considered as an “integrated whole”. And to further underscore this point Mayo explains,
“In Diehr, the overall process was patent eligible because of the way the additional steps “Integrated” the equation into the process as a whole.”
(Emphasis added)
“Can you give an example of a claim that would fail when non integrated but would pass when integrated and explain why?”
Diehr is a good example. If you dis-integrate the claim and consider the equation as the novel subject matter, and ignore the additional steps which are conventional, Diehrs claims are non statutory subject matter.
On the other hand if you consider the equation as part of the claim, as an Integrated whole, then the overal process is statutory subject matter.
The only time the Court has considered the separate elements, since Diehr is when the claim is
1. A law of nature/natural phenomenon.-( Mayo)
2. An eqaution, which is like an abstract idea.-(Bilski)
3. A concept that can be reduced to math which is also like an abstract idea.-(Alice)
Likewise, any claim to subject matter outside the useful arts, and that falls sqaurely in the visual, performance, literary, and liberal arts is considered like an abstract idea. And therefore the analysis would require looking at the individual steps and comparing the steps to the Claims”as an Integrated whole.
This is step two of the two step test based on the Mayo framework. As you can see from the Court cases mentioned above the test is not a whole sale license to dissect claims, but instead is a framework for considering all claims as an “Integrated whole, in the concluding analysis.
This definition of software issue business is silly. Go back to the beginning. The von Neumann architecture. If you understood this, then you could not argue that software is not a component and that it has no structure. The whole idea was to move the architecture of the machine into memory and build a little simulator for the architecture so it did not need to be hardwired. Scientific fact!!
The abstraction of the programming language merely adds a layer of abstraction on top of this.
This is scientific fact. This is not disputed by any credible person in computer science or electrical engineering.
So, you anti-patent people can psychotically make up nonsense, but that is scientific fact.
bert: do they claim the whole computer/system and what it does or just their part of it?
Bert, that is a red herring. Nvidia could do either. I have written patent application for graphics cards for a different manufacturer.
The fact is Bert that software is really just hardware. The whole machine is just a way to reduce the hardware by building a simulator. In fact there is a heavy cost for this in that GPC + software is much less efficient then special purpose hardware. Scientific fact. Not psychotic anti-patent nonsense.
Whether it is a red herring or not, do they? Or do they just claim their component?
The software is not hardware.
Do everything with special purpose hardware and I think I’d be happy for you to have a patent (obviously depends on what your hardware does) but if you take the easy way out and build software and use someone else’s invention (ie the computer) to do whatever you want to do then I don’t think you deserve a patent.
And I know what psychosis is and I don’t suffer from it. It is not kind to state such things. Anon says that I insult him but I don’t, unless a challenge to answer properly is an insult.
Your notion that anti-patent advocates (which actually is a misrepresentation of my stance) are psychotic is insulting.
“take the easy way out”…?
You quite miss the FACT of the equivalency*** between software and hardware and software and firmware.
*** and it bears repeating (sadly) that equivalency is not the same as “exactly the same,” as certain people are sure to try to kick up dust with the “exactly the same” misdirection.
(you are incorrect in how you are portraying any type of your action insulting me, by the way)
in what way do software and hardware operate in substantially the same way?
by your definition a deisel engine is the same as a petrol engine. if you don’t look under the hood then everything looks the same
That very much depends on which rung of the ladder of abstraction you are standing on.
Why don’t you explain rather than provide a non-answer
bert,
I have explained – several times now, across many threads.
You mistake my posts as “non-answers” when I am merely summarizing previous posts.
It is just not certain how much would need to be explained to you – do you have any understanding of what the ladders of abstraction mean? If you want more, then the onus is on you – the archives are here, general patent law courses are available.
It is still wrongheaded.
Hardware can actually DO something.
Software cannot.
You still monologue….
But here’s an active task for you take:
You believe that “software does nothing,” then remove ALL software from your computers and tell me how much you can do.
We both know why you will not – cannot – complete this task. You simply – and unequivocally cannot DO it.
Used to do it all the time.
Though that was with PDP-8s and PDP-11s.
It is also done every time with a new CPU is created.
The most recent time I did it was last year – that was to work on a stack machine that had no physical existence.
The only reason it is difficult now is due to vendors choosing to make it difficult.
Not because it has to be.
So get that NO CREDIBLE PERSON would say that software is anything but the INSTRUCTIONS to this hardware simulator that we call a CPU.
There are two camps that dispute this: the ignorant programmers that don’t understand the abstracts they work under and the anti-patent judicial activist.
Irregardless, programs are written by and for people.
The numbers that are generated can also be read and interpreted by machines is no accident, but design.
People read programs to fix them. People read programs to analyze how the math works (that is part of computer science – math analyzes itself for errors, and to identify new math truths).
And that simulator of yours – it is defined by math, but implemented in real, physical parts. No issues with patenting that.
Everything else is just abstract information that should not be patentable.
And finally the judges are seeing through the snow that has been thrown at them.
Sorry jesse, but program are NOT written for “math truths.”
You really need to break free from that “maths” mindset – programs are written to have some meaningful utility – and it is that utility that guides the inclusion into patent protection.
Go attend a class with Dr. Knuth.
Dr. Knuth’s belief system is quite separable from the science.
please engage your own critical thinking skills and stop the lemming approach.
It is his field of expertise.
And he is quite good at it.
jesse, you are monologuing again and not listening – le’s try this one more time: Dr. Knuth’s belief system is quite separable from the science.
anon, he believes in the truth.
I trust him far more than anything you have said.
Your “trust” is a belief-system driven “logic.”
You are behaving illogical – and in an unthinking lemming manner.
Dr. Knuth has earned that trust.
Patent law (as represented by the people professing to be experts) has shown itself to be illogical by denying the field of math, where logic rules all.
Every CPU embodies the definition of a math system. If it did not, it would not work…
Engineering, and science in general, embraces math, but does not rule math.
Only patent law seems to be trying to rule that which cannot be ruled. What will happen is that the development and use of math will just move elsewhere, as did the field of encryption (and recently much of science itself).
…earned that trust…?
No – think man – think for yourself and do not be a lemming when it comes to the separable aspect of belief.
Your “math rules over all” sounds exactly in the “Universe is really only maths” philosophy. Come back to Earth.
You are misconstruing (and I’m being polite) what I said.
I SAID “… field of math, where logic rules all.”
I did NOT, and WOULD NOT” say “math rules over all”.
Math does not rule physics. Math can only describe some aspects of physics.
I have read his books Jesse. I am sure what I am saying is consistent with the content of his Art of Computer Programming series.
Then you need to revisit the sections on “analysis of algorithms”.
I don’t think so Jesse. I spent years being an expert on the analysis of algorithms.
What you have to square Jesse is that equivalence of software and hardware.
Not only that but with a special purpose chip —think now—how is that different than having equations describing how a chair operates?
The special purpose chip is physical device.
The chair is a physical device.
Both are patentable…
Now any microcode software in the chip is not part of the patent – it should be excluded.
Really? “…years being an expert on the analysis of algorithms”?
You did know that the algorithms are just software… So who read that software?
>You did know that the algorithms are just software… So >who read that software?
Jesse: it is information processing.
And how is that different from math? It follows the same rules, the same logic, and gets the same results.
Without “math truths” your program wouldn’t run.
Please define “math truths,” as you appear to be using a line of thought akin to “without natural laws, NOTHING would ‘run‘.”
..then be prepared to accept the significant real and legal difference between “math” and “applied math.”
“legal difference” does not mean actual difference. It is just another “legal” fiction made up to claim control over some other field.
applied math is not what you think it is.
applied maths is the use of maths to describe reality, ie physical interactions.
applied maths is not the application of maths to solve a problem.
for example, encryption is not applied maths even though it has real world applications.
similarly, the generation of prime numbers is not an applied maths problem even though it is used in the real world.
lol sorry bert – you are in the wrong terrain and applied math is exactly what I think it is.
You really do need to understand the complete picture.
bert, that is the problem with anon.
He doesn’t know much about math, yet tries to rule it.
Quite the opposite jesse (and bert) – you two have disassociated yourselves and your infatuation with ‘maths’ and have divorced yourselves from the real world aspects.
Time to wake up and look around you – software is real – it really is a machine component and a manufacture in its own right. It is not something purely of the mind (such is only the thought of software). Two machines, once identical, are no longer identical when one machine is reconfigured with the addition of the machine component of software. This is reality.
Quite the opposite jesse (and bert) – you two have disassociated yourselves and your in fa tuation with ‘maths’ and have di vorced yourselves from the real world aspects.
Time to wa ke up and look around you – software is real – it really is a machine component and a manufacture in its own right. It is not something purely of the mind (such is only the thought of software). Two machines, once identical, are no longer identical when one machine is re configured with the addition of the machine component of software. This is reality.
my definition of math truths would be logic but may not necessarily be limited to that alone.
i’m afraid i’m not clever enough to work it out, nor knowledgeable enough to know whether there is the possibility that computers can work without logic, nor do i know of any part of maths that works without logic – to me it is fundamental – but i wouldn’t discount it. could anyone enlighten me here?
a simple example of a maths truth would be
if 4 < 5 then true
think in terms of ANY engineering domain then, and your logic makes all fruits of all engineering off limits from the patent system.
As I have pointed out – the arguments you use are not anti-software patent – they are anti-patent.
anon, the “fruits of all engineering” are real physically existing devices.
The math is not part of it.
Your “physicality” divide is not sufficient for the real world, jesse.
software is not math
Exactly as engineering uses math, so software uses math
Software is more than math, hence copyright protection inures (for the aspects of software that fall under that domain), hence patent protection inures (for the aspects of software that fall under that domain).
You can keep on monologuing and keep on denying the facts that are all about you – those facts remain nonetheless.
What “more”?
Neither engineering nor computers use math any differently than math uses math.
math does not use math jesse.
You are slipping here – you are really saying that a person using math may nest the use of the math – but there is no person involved in the inventions as claimed – only machines and manufactures.
You need to recognize this fact.
Slipping yourself.
Math is applied to math… Otherwise compilers could not work… Even computers would not work.
“information” is an abstract concept – and claiming it is “real” doesn’t make it true – it can be considered a lie. At best it can be polity referred to as “an error”.
Again jesse you are caught up in monologuing and you are not reading the comments:
math does not use math – you cannot empower math so.
A person may use math in a nested fashion – but that is quite distinct from the innovations and inventions under discussion. Compilers “using math” to work does not support your view and rather supports my view – such is the dominion of the patent world and such clearly evidences the reality that software is NOT something purely in the mind. The fact that a machine can use math in this manner removes the Platonic element of your “abstract” and makes it very much real – and very much the domain of patents.
Reality intrudes. Open your eyes and stop running into the walls.
No it doesn’t.
Abstract algebra is a field of math that can be used to define systems of math.
Which is where the computer came from.
And I haven’t run into a wall.
Just because a machine can also follow the rules of math has no effect on the math. It remains just math.
No matter how you breast beat or trumpet, the Curry-Howard correspondence remains. Software is just math.
“Software is jus math.”
On its fact this is ridiculous. The computer, takes time, space, and energy. Information is processed. The conservation of information tells us that work has to be done to transform information.
Where is math?
You cannot escape physical reality with “math.” Ask yourself what is math? Where is it? Think. Where is math?
Instructions that process information.
Actually jesse, I think I’ve found something with which anon and I agree. Software is more than maths.
Software is expressive. I’ve seen some beautifully written software with wonderful comments. My attempts, by comparison, were crude and inefficient, though they worked. And this is why the source code (as a body of work*) deserves copyrighting. The executable object code is also copyrighted as it is a derivative.
I’m afraid your thoughts are alien to me anon when you say that I am anti-patent and that my logic makes the fruits of all engineering off limits. Please reference where you explained this previously.
I see a light bulb and I can express the power output by the bulb as heat and light as a calculation based on the resistance of the filament and the electrical input. I can also describe how the individual parts are manufactured and then assembled to produced the finished product. This description could form the basis of a patent. I don’t understand how I’m anti-patent.
*that is not to say that a significant function shouldn’t be copyrightable in its own right.
Congratulations bert on your pregnancy of realizing that the “software is math” argument is a fallacy. I do hope that you are able to convince jesse of his error (I came close when I pulled him along a discussion featuring why copyright protection is available for software even as it is not available for math).
Now keep in mind that software has multiple aspects, and it is merely the expressive aspect that garners copyright protection and that other aspects garner other forms of intellectual property protection.
I do hope that you are aware of the limits of copyright – as your comment “*that is not to say that a significant function shouldn’t be copyrightable in its own right.” betrays a deep lack of understanding – function is not within the copyright realm. I will give you one guess which realm covers that.
I also eagerly await your self-education on the exceptions to the judicial doctrine of printed matter and the very real difference of Set C printed matter and Set B printed matter that exists – especially in non-software domains. You should take note of how I phrase this, as the the typical way it is phrased for patent professionals has been mistreated on these pages. The base statutory language simply has no provision against printed matter and it was a judicially created doctrine that sought out to eliminate Set B type of printed matter. It is a bit of a misnomer to use “exception” as Set C is merely an exception to an exception to the Congressional law. Set C is not an aberration, but rather a restoration that occurred upon realization of the difference in printed matter that exists between Set B and Set C printed matter.
I have always said software is a written language of math. Annotations are extra, but do not normally exist – and on their own, are rarely sufficient…
And math can be beautifully written..and wrong, or even poorly written.. but correct. That is the nature of writing. One of the best things about math is that things poorly written can be logically refactored/simplified/clarified without changing the result. In software terms, it is called “optimizing”.
Math has been copyrighted for years, as each publication demonstrates. Now, does the publication include non-copyrighted materials? yes. Just as a phone book does.
But the organization and presentation of the facts being provided in the math are still copyrighted. Just the facts of the math are not.
That still doesn’t have anything at all to do with claiming a reality that doesn’t exist.
One of the truths of math is that any math system considered interesting by mathematicians is either complete, but inconsistent (ie, they have a logical contradiction), or they are incomplete (not all math expressions may be specified), but consistent.
Math systems that are both complete and consistent are not considered “interesting” by mathematicians. Yet, it is JUST such a math system that is defined by a CPU. The number system used is well defined (and limited), the operations available (and combinations of those operations) are well defined (and limited). Now those limits are quite large… but are still finite. Trying to map the set of real numbers into the limitations forces the real numbers to be “incomplete”. A large set, but still limited (there are both holes in the set, and have a limited number of values).
The limits don’t remove the math system from the field of mathematics.
jesse,
You dive deeper into the weeds without knowing it.
a written language of math…? like a map is a pictorial “language” of the land…?
You realize of course, that the map is not the land, right?
You realize of course that types of software languages (such as C#) are the language – and are not software, right? Software is written with language, but is a Set C type of written matter and such is fully under the domain of patent law.
No.
C# written in C# is still software, and is still the language C#.
Your statement would say that written English is not English.
anon, your comments betray your deep lack of understanding of software and also a slight ambiguousness of my words. If you knew software you would have understood my context and not made that mistake.
The “significant function” to which I refer is actually a named section of code which in C would be enclosed in {} and contain a number of lines of code. It could also be referred to as a module or procedure or subroutine
I am well aware that functionality is not copyrightable. I watched the Oracle v Google trial with a great degree of interest. The context in which I was talking was exemplified in that case with the java function called rangeCheck, which was really rather trivial.
my potentially copyrightable version of the rangeCheck function is
goldilocks(porridge, too_cold, too_hot){
if temperature <too_cold
throw bowl;
if temperature <too_hot
throw bowl and drink water;
if porridge = 0
throw bowl;
}
The java rangeCheck is trivial and the words used are explicit in their meaning
My goldilocks version is different and (arguably) expressive, but it is still rather trivial so may not be copyrightable.
Individual lines of code, such as
a = a + 1;
or
x = 3a + b;
or small combinations of such are not copyrightable. Larger combinations may be copyrightable if they contain some element of creative expression, which may be realised with (but not limited to) different names for variables, functions (ie like goldilocks above) and comments.
You may note some similarity between my examples of individual lines of code and algebra, aka maths. This is not by mistake, nor is it by luck. You could say that it is the fundamental natural law of computing and computers (whether they are digital or human). Afterall, computers were designed to do maths.
So, to summarise, software is maths.
Source code is copyrightable if it is expressive enough. If it isn’t expressive enough then it isn’t likely to be copyrightable, though this situation is currently in flux owing to the CAFC’s decision and Google’s recent appeal in the Oracle v Google API suit.
Source code, as it is known today (in the form of languages such as C, java, pascal, etc is derived from earlier languages which were designed to convert human readable words into computer readable (ie processable – we’ll have none of these anthropomorphication complaints) data, ie 1s and 0s.
If you were to argue that software shouldn’t be copyrightable because the executable object code is a number, ie lots of 1s and 0s, and therefore not expressive then I would argue that the object code is copyrightable as a derivative of the source code which is copyrightable as it is expressive.
sorry for the multiple posts. I think the word bo ring and gen erally were stopping me posting it all in one go.
bert,
Sorry, but your replies show such a degree of NOT understanding copyright basics that a response is not possible. Logically, it is akin to me being a three dimensional person asking you, a two dimensional being to understand that you can escape your binding circle by stepping over that circle. In a nutshell, you need to not only understand the technical/philosophical terrain of “maths” but the terrains of applied math in the real world and the aspects of what the legal world are set to provide protection for. You need a basic level of understanding across the board – and the (self-proclaimed) “deeper” understanding only in “maths” simply will not compensate.
You claim that I show “misunderstanding” of words – while you continue to show an even deeper misunderstanding of when intellectual property laws apply.
I take some small solace in the fact that you recognized that software is more than just math – you have at least taken a small step that jesse refuses to take. I think the semantics of “maths” is what trips you up. That is why I have in the past shared a link with a certain philosophy (re; Tegmark) that takes the Platonic-like treatment evident in “maths” (and yes, I fully understand the philosophy) and applies it across the board (which in truth is where jesse is coming from, even if he is unaware of that himself).
See also link to discovermagazine.com
Let me get this straight, you say that
No credible person would say that software is anything but the instructions to a CPU.
Which translates to
A non-credible person would say that software is not instructions to a CPU
I say that,
Software is only instructions to the CPU.
Therefore I am a credible person.
Now that we have established that I am credible:
Software does nothing.
A CPU does something.
Software is not hardware.
You are confusing the “is” and the putting that “is” into action.
One cannot put “nothing” into action and have a new capability not present before.
That would be the logical equivalent to magic.
you are confusing is with does
I am not the one who is confused – I full well recognize that to have something “do” you first have to have the something.
You cannot have a nothing “do.”
You are the one attempting the sophistry of defining the object ONLY as an action. Real world software is a deliverable – an object. It may be a written object, but written objects (Set C printed matter) carry patent weight.
This is the reality that cannot be denied. No matter what your belief system is, this is a fundamental fact that remains.
Only physical devices can “do” anything.
Nonphysical devices are called ideas, abstract notions, writings. Which “do” nothing.
Denying reality is what is wrong.