Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <>
Date: Thu, 30 Dec 2004 00:14:40 -0500

Ben Tilly wrote:
> When you sit down with the software that Intel uses to design a
> new chip, it is capable of producing both the physical
> specification of that chip and a software emulation of what the
> chip will do.  There is no difference in the work needed to get
> either result, the design process is identical and you get both
> software and hardware out.
> To me this implies a level of equivalence between that software
> and that hardware.  To you it doesn't.  But whether or not you
> consider that the relationship bears an equivalence, the work
> to design one is exactly the same as the work to design the
> other.

That software represents pure logical algorithms for 1) producing
a specification and 2) emulating the chip's function.

That software is not appropriate for patents, because it
represents pure logical algorithms (it is, BTW, a set of
instructions being executed by a generic logic device itself --
an earlier logic chip that is being made to emulate the one in

The new chip is delivering a set of logical functions (assuming
you're speaking of an Intel CPU).  Other than the case of
internal microcode, though, it is not itself providing
instructions to another logic device.  It is, instead, a concrete
implementation that produces the result of providing logical
functions for systems that use it.  That concrete implementation
would be patentable inasmuch as it meets the tests of novelty,
etc., and does not within itself embody instructions provided to
a logic device.

The software emulation will take external instructions just as
the chip will.  It will take input and generate output based on
those instructions.  In that sense it will be just like the new
chip.  But what's patentable is the concrete implementation in
the new chip, not the software that emulates it or for that
matter, the logical functions that the new chip delivers.

1) The logical functions that the chip is designed to deliver,
are not the same as the patentable concrete process by which that
chip makes those logical functions occur.

2) Inasmuch as the concrete process in the new chip represents
the algorithms by which the software emulates it (which obviously
is not the case), then you might have an example that meets your
needs (showing an equivalence between that software and the
hardware that might show that there is no way to distinguish pure
logical algorithms from patentable subject matter).  The logical
abstract algorithms that that software represents, are not the
concrete process itself, in the chip.  They are pure
abstractions; they are steps that are required to make an
emulation come about; and the concrete process neither represents
those emulation algorithms or (necessarily) instructions provided
to a logic device.  Inasmuch as the concrete process being
emulated is not itself acting as instructions for an internal
logic device of its own, then it is patentable if it meets the
tests for innovation.

The nonpatentability of software in such an emulation program may
make the patent on the concrete chip's processes less valuable in
the sense that somebody else can implement that chip via such
emulation, but in point of fact, in this case (a logic device
compared with a software emulation of the device), that is not
terribly important.  Others may not produce the same patented
concrete circuit without permission from the patent holder, and
presumably that circuit is worthwhile in its concrete form.  The
only parts of that innovative concrete circuit that others could
produce without permission, would be those parts that serve as
instructions to some internal logic device within that concrete



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