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Juristischer Aufsatz zu Softwarepatenten

     4. Patenting Floppy Disks, or How the Federal
        Circuit's Acquiescence has Filled the Void Left by
        Legislative Inaction

     Shawn McDonald

     Virginia Journal of Law and Technology
     University of Virginia
     Fall 1998


     REF: ULRP9900058

     Allowing article of manufacture claims to computer
     instruction (software) as embodied in a
     computer-readable memory device is a practical method
     for providing easily enforceable patent protection for
     the innovation embodied in software. Such claims offer
     significant enforcement advantages as compared to the
     process and machine embodiment software claims
     previously deemed eligible for patent protection.
     However, allowing patent protection for such claims
     creates numerous doctrinal inconsistencies when
     compared to the patent protection afforded inventions
     claimed in terms of true physical limitations. The
     fundamental cause of the unpredictability and
     inconsistency, which might best be described as
     'doctrinal chaos,' of recent decisions by the Court of
     Appeals for the Federal Circuit (CAFC) regarding
     patent protection for software inventions is simply
     that the current patent law was not designed to
     provide such protection. The current patent statute is
     based upon the mechanical innovation paradigm of the
     Industrial Revolution rather than the algorithmic
     innovation paradigm of the current Information
     Revolution. It is well suited to the protection of
     tangible machines and industrial processes for
     converting one substance to another, which represented
     the great bulk of innovation in 1952. It has also been
     applied with reasonable success to protect machines
     and processes for the conversion of electronic signals
     of one kind into another. However, it has failed to
     adequately protect systems for processing one kind of
     data into another kind of data where the physical
     structure used for implementation, and the symbolic
     meaning of the data transformed are irrelevant to the
     invention.[4] The innovation in such cases resides in
     the idea of how to perform the transformation from one
     form of symbolic data to another. The current patent
     statute was designed to protect ideas indirectly by
     allowing claims to the tangible manifestations of
     those ideas. In bending the patent law to provide
     protection for intangible algorithm inventions,
     lawyers and judges are arguably attempting to allow
     the direct claiming of ideas. There are compelling
     arguments both for and against such bending of the
     patent statute to provide patent protection on
     algorithm inventions independent from physical and
     structural claim limitations. The policy arguments on
     each side are so compelling that the courts have
     vacillated unpredictably, trying to make policy
     decisions that are best reserved for the legislature.