Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <>
Date: Sat, 1 Jan 2005 00:25:35 -0800

On Sat, 01 Jan 2005 03:29:33 -0500, Taran Rampersad <> wrote:
> Ben Tilly wrote:
> 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.
> "*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."


What I've seen cites patent 1,647 granted in 1840 as the
patent on Morse code, and patent 6,420 granted in 1849
as the patent on the telegraph itself.

The two patents in original form are available at:,647.WKU.&OS=PN/1,647&RS=PN/1,647,420.WKU.&OS=PN/6,420&RS=PN/6,420

Unfortunately they are tiff files, which my browser isn't
currently set up to handle, which I don't want to go through
the work of figuring out before I go to bed.

If someone else reads them, I wouldn't mind knowing what the
actual patents say.

> 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.

I'm not disagreeing with you.  I'm just saying that I'd heard
that he had seperate patents on the machine and the code.
Certainly he had two patents, and people tend to describe
one as a patent on Morse code and the other as a patent on
the telegraph.  But what people describe and what happened
often differ.

> 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...."

Yup, and in 1998 they decided that business method patents
were also OK. :-(

> The 'next section':
> Glad you folks asked about Morse... learned a lot along the way.

It is funny how that tends to happen... :-)