Subject: Re: Examples needed against Soft Patents
From: Taran Rampersad <>
Date: Sat, 01 Jan 2005 03:29:33 -0500

Ben Tilly wrote:

>On Fri, 31 Dec 2004 20:57:20 -0500, Seth Johnson
><> wrote:
>>Ben Tilly wrote:
>>> <>On Fri, 31 Dec 2004 04:56:49 -0500, Seth Johnson
>>> <> wrote:
>>>>>For a random instance, US patent 1,647 issued in 1840 seems to
>>>>>be about something that's pretty abstract.  (That's the patent
>>>>>on Morse code.)
>>>>Yes, what's happened is, many things were patented that might
>>>>have been suspect to some folks at the time, but now are much
>>>>more plainly suspect.  The Morse code patent we now can see in
>>>>terms of symbolic processing -- that it's a set of symbols that
>>>>can be used like code to be automated.  But at the time, it
>>>>seemed much more like a particular technical solution to a
>>>Do you have documentation that people at the time questioned
>>>whether Morse Code should be patentable?
OK, I'll bite.

"...In February, 1838, Samuel Morse set out for Washington with his
apparatus, and stopped at Philadelphia on the invitation of the Franklin
Institute to give a demonstration to a committee of that body. Arrived
at Washington, he presented to Congress a petition, asking for an
appropriation to enable him to build an experimental line. The question
of the appropriation was referred to the Committee on Commerce, who
reported favorably, and Samuel Morse then returned to New York to
prepare to go abroad, as it was necessary for his rights that his
invention should be patented in European countries before publication in
the United States.

      Samuel Morse Applies for European Patents

Samuel Morse sailed in May, 1838, and returned to New York by the
steamship Great Western in April, 1839. His journey had not been very
successful. He had found London in the excitement of the ceremonies of
the coronation of Queen Victoria, and the British Attorney-General had
refused him a patent on the ground that American newspapers had
published his invention, making it public property. In France he had
done better..."

"*1840* - Samuel Morse is granted a United States patent for his
telegraph. Morse opens a daguerreotype portrait studio in New York with
John William Draper. Morse teaches the process to several others,
including Mathew Brady, the future Civil War photographer."

So yes, there was a question of patentability - but apparently not on
the grounds of abstraction - instead, on the grounds that it was
published publicly, and at the time may have been thought public domain
by some. Speculation on my part, but the patent itself was probably
never seen as abstract - since the machine that was used was part of the
patent (which sort of goes with the point I have been trying to make
about hardware AND software...)

Reference the drawings:

He defined what the machine would do, and defined the machine. Not very
abstract. Had he patented the code alone, it would have been abstract.
However, he patented the machine which used the code he defined in the
patent specification.

This article regarding the History of Software Patents is of interest to
this discussion:

"... In the early 1990s, the Federal Circuit (the highest court for
patent matters other than the Supreme Court) tried to clarify when a
software related invention was patentable. The court stated that the
invention as a whole should be examined. Is the invention in actuality
only a mathematical algorithm, such as a computer program designed to
convert binary-coded decimal numbers into binary numbers? If so, then
the invention is unpatentable. However, if the invention utilizes the
computer to manipulate numbers that represent concrete, real world
values (such as a program that interprets electrocardiograph signals to
predict arrhythmia or a program that analyzes seismic measurements),
then the invention is a process relating to those real world concepts
and is patentable

In 1995, the P.T.O. decided it was time to develop guidelines for patent
examiners that reflect these recent court decisions. After releasing
draft versions of the guidelines for comment, the P.T.O. adopted
guidelines for P.T.O. examiners to use to determine when a software
related invention is statutory and therefore patentable. These
guidelines are analyzed in the next section...."

The 'next section':

Glad you folks asked about Morse... learned a lot along the way.

Random notes: (first patent was
for a glass making process... hmm...)

Context of the period w.r.t. patents:

"...In 1836, Congress passed another Patent Act. This Act established a
Patent Office, still under the Department of State, but separate from
the duties of the Secretary of State. The Act was responsible for
reforming problems in the previous acts - namely increasing the
efficiency of the patent application process. Henry Ellsworth, who was
instrumental in drafting the Act, was appointed to be the first
Commissioner of Patents.

Through the Patent Act of 1836 a system was created for distributing new
patents to libraries in every state. As a result, newly issued patents
were distributed on a regular basis throughout the country. This
provision resembles Hamilton's suggestion that information regarding new
patents be published and made publicly available. A goal of the
establishment of these libraries was to provide the general public
access to the knowledge disclosed within the various patents. This
practice led to an increase in the number of new applications as well as
to an enhanced quality of such applications. "By consulting the patents
in a sub-class a searcher may determine, before submitting an
application to the office whether the invention contained in it has been
anticipated by prior patents."^14

By 1843, women played a role in the early Patent Office. Many were hired
to make copies of patents that were to be distributed to the various
libraries across the country. At this time, these women were paid ten
cents for every hundred words copied. Annie Ellsworth, the daughter of
Commissioner Ellsworth, was one of these patent copiers. She was given
the opportunity to send the first message over Samuel Morse's telegraph
from Washington, D.C. to Baltimore. Her now famous message was, "What
hath God wrought!"^15


If we want to talk about abstract, how about this? : "In 1873, Louis
Pasteur received a patent for "Improvements in the process of making
beer"... --

Happy New Year. And someone get me some olives, my martini is dead.


Taran Rampersad

"The wave of the future is not the conquest of the world by a single dogmatic creed
but the liberation of the diverse energies of free nations and free men."  John F.