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Comment by petegrif | Hacker News Reader

The problem I have with this is the following. a) There is no software that we cannot put into hardware - literally! Software and hardware are interchangeable. So the oft cited distinction between s/w and h/w is, to say the least, somewhat arbitrary. b) "If a method can be performed by the human mind alone, or with paper and pencil..." This test sounds as if it might make sense but runs into real problems once you bear in mind issues of computability. E.g. is it therefore patentable if although it could in principle be performed by the human mind with a paper and pencil the degree of computation required is so enormous that such a method is completely impractical. e.g. real time graphics processing. I suspect that the class of such methods is extremely large.

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I don't see the problem with A. If you take the software, which can't be patented, and put it into hardware, you can patent the hardware. This seems perfectly reasonable to me, and it holds pretty closely to the original idea of patents: A specialized device that performs an action is an invention, but the act being performed is not an invention. I also don't think that software that emulates the hardware is not in violation of the hardware patent.

I think B is a much bigger problem. Any computer program could be performed with pencil and paper, by getting a big file folder to simulate RAM, indexing it by numbers, and performing assembly instructions by hand with post-it notes as registers. I think the major exceptions are interfacing with other components, including UI systems and networking, and anything with a real-time component.

> Any computer program could be performed with pencil and paper, by getting a big file folder to simulate RAM, indexing it by numbers, and performing assembly instructions by hand with post-it notes as registers

Indeed. But surely if the purpose of the algorithm is something like "find whether this combination exists in a set of millions / billions of records within a tractable time" then it cannot possibly be done by hand in a tractable/practical way -- and it will fail this test?

It's still just an algo. It's still just math.

Yes but when time-sensative information relies on speedy calculations or approach then there is inherent usefulness to the invention. A competing firm may choose to solve the issue by paper in order to avoid lawsuits for stealing the patentable invention but its impractical.

So an otherwise fundamentally unpatentable algorithm could become patentable "when used in a time-sensitive application"?

Or, an otherwise fundamentally unpatentable algorithm with today's core counts could become patentable five to ten years from now when pocket computing power is measured teraflops?

Any computer program could be performed with pencil and paper

This ruling requires that doing it my hand or purely mentally be achievable as a practical matter.

It is not practical for me to draw frame by frame the contents of an AVI file by hand, even if it were theoretically possible, etc. While this ruling does leave judgment calls and grey areas, there are also a lot of cases where it can be decided very directly whether or not it is practical to do the operation by hand.

Not having looked at the avi container format why would you say it's impractical? Certainly a 'normal' sized avi would be impractical but what about a 10x10 grid of pixels? The algorithm is unchanged, why should the size of N matter?

It seems to me like basing patentability on time constraints actually imposes a distinction between hardware and software, regardless of how you feel about their logical interchangeability. For example, an algorithm for real time graphics processing would be just as impractical to run on ENIAC as it would be to do with pencil and paper, but there's no reason you couldn't port the software. So if the validity of the patent is based on its usefulness in a real-time application, it would have to be something like "running algorithm x using computer system y to achieve the desired result in z length of time." Including both the software and hardware used would be the only way to ensure that the time constraint was actually met. I think it's obvious that very few (if any) software patents could meet that criterion.

ianal, but would it not stand to reason that if the algorithmic method exists to incorporate/address computability specifically; then by implication the "human mind/pen&paper" criteria could only pass if performable under the same constraint?

For example, if the purpose of the method specifically relates to real time graphics processing (ie the real time constraint is a fundamental aspect of the method) -- then the expectation would be that the pen&paper test would have to be able to achieve the same constraint (ie calculable in real time) for it to invalidate the claim of the method?

I guess it depends on the granularity of the algorithm?

Imagine a transformation mapping one set of points onto another. If each individual transformation can be calculated with pen&paper, I'd hope the process is not patentable, even if running it a million times in a loop is what makes it useful.

There is no software that we cannot put into hardware - literally!

Indeed, as I have often argued too. And even "virtual" software can readily be implemented in human scale electromechanical devices, as with the relay-based computers where you can watch the memory bits change and even reach in and flip them with your fingers.

"If a method can be performed by the human mind alone, or with paper and pencil..."

However the issue with this patent is that it was too broadly written. The claims apply to all possible implementations, including pencil and paper methods, not just implementation with a logic machine. That is unpatentable.

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