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Juristischer Aufsatz zu Softwarepatenten
- To: "'debate@fitug.de'" <debate@fitug.de>
- Subject: Juristischer Aufsatz zu Softwarepatenten
- From: Johannes Ulbricht <Johannes_Ulbricht@csi.com>
- Date: Fri, 3 Sep 1999 05:51:39 +0200
- Comment: This message comes from the debate mailing list.
- Sender: owner-debate@fitug.de
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
http://vjolt.student.virginia.edu/home.html
Fall 1998
http://vjolt.student.virginia.edu/graphics/vol3/home_art9.html
REF: ULRP9900058
ABSTRACT:
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.