Pen and paper patents
"Pen and paper patents" or the "mental steps doctrine" refers to a test which excludes software from patentability. The point is to show that everything done by software can also be done (albeit much slower) by a human - either mentally or with pen and paper. This is somewhat similar to the argument that software is math.
A related idea is whether the speed increase due to using a computer means the computer becomes part of the invention. Clearly not, but a three judge panel of the US CAFC ruled it does: Cybersource v. Retail ruling by US CAFC on 16 Aug 2011.
It must be kept in mind that software patents are not patents on writing software. The act of typing at a keyboard (or writing with a pencil) is not what's covered by the patent. It's the development of something which implements a method or a process. On the other hand, the EPO quote below is food for thought.
EPO says they might be able to qualify
In the EPO decision T 258/03, the section Reasons 4.6 says that:
comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.
Some good CAFC rulings after Bilski
The US Court of Appeals, depending on which three judges hear a case, has given some very pro-swpat rulings since Bilski, but also some good anti-swpat rulings. Examples of the latter are:
- Cybersource v. Retail ruling by US CAFC on 16 Aug 2011 - "mental steps" doctrine: says you can't patent what can be done in the mind, BUT they also cite two software inventions that are patentable because they "require" a computer
- Bancorp Servs. LLC v. Sun Life Assur. Co. of Canada - says speeding up mental acts via a computer changes nothing
Economically, computers are like paper
the economic rationale behind not granting patents on thoughts applies also here: abstract ideas are, regardless of their applicability to technical problems, produced without experimentation cost, applicable to an infinite range of problems, and replicated at zero cost with no overhead to which patent license fees could be added. The division of the extra cost of patents by the marginal cost (and long-term ideal price) of information goods is a division by zero. Moreover the deal between the inventor and the public, characterised as "monopoly on commercial implementation in return for disclosure of idea", is led ad absurdum: since between the idea and the application there is no invention, any adequate disclosure of the idea in turing-complete syntax risks to become an act of patent infringement.
Related pages on ESP Wiki
- Analyses of the patentability of specific ideas
- Software is math - what if math is so complicated, a pen and paper are required?
- How to write a law banning software patents
- Software does not make a computer a new machine - somewhat related: adding a computer is no different from "adding" your brain
- Debunking the Software Patent “Pen and Paper Myth”, 14 Apr 2010, IPWatchdog