Telefon A/B Ericsson's Application

Posted by Anton Hughes on Thursday, September 08, 2005 with No comments
At 51:
"The specification is a brief and rather simple document free of any details of electronic circuitry or –- indeed -- of any description of actual hardware, and free of any involved examples of the programmer's art. The specification is concerned not with instructing a computer how to solve a problem but with instructing a programmer how to  write a programme, or -- more particularly -- certain parts of a programme."
At 54:
"The word 'programme' has often been used in the sense of a plan of action, a scheme, a list of operations, a sequence of instructions, or a solution for a problem. Sometimes it is meant to cover the mere intellectual concept, at other times it refers to what is actually written down in longhand or flowchart form, and sometimes it refers to an actrual component such as a card, tape or other record on which the idea of the programme is embodied in a form intelligible to the particular machine."
"'Programming' has also been used in a multiplicity of meanings relating to one, or more, or all, of the actions involved to move from the presentation of the problem to the loading of the computer... [T]he analysis of the problem, selection of a solution, perhaps even the choice of a suitable type of computer, the breaking-up of the solution into manageable segments, writing it down, preparation of a flow chart, coding, assempling, compiling or even the simple act of placing a cord into a computer have been described, singly or in combination, as 'programming'"
"The problems to be presented to the computer are not relevant, and they may cover such diverse fields as preparing apayroll, predict the weather, conduct a warehouse operation, play a game of chess or solve a differential equiation. The economic significance or the intrinsic value of any of the solutions is also not relevant. The computer will clearly do what it is told without any reference to the purpose of the operations. The effectiveness and efficiency of the computer's performance will, of course, be governed by the programme used."
At 55:
"[T]he practice of the patent office in matters relating to programming of computers may be summarised in the following manner. Computer programmes, consisting of sequences of instructions how a problem may be solved, are not a proper subject for letters patent. Methods of programming, consisting of the writing down, in one form or another, of a programme are also not a proper subject for letters patent. A tangible record of a programme in physical form may be proper subject-matter for letters patent if it can be differentiated from the prior art by features other than the recorded text of the instructions. And finally, a computer, programmed, by a particular programme, may also be proper subject-matter for letters patent if its hardware is different from the prior art or has been effectively modified by the programme."
Cited authorities (new ones):
  • N.V. Phillips Gloeilampenfabrieken's Application (1966) Official Journal, 2932
  • International Business Machines Corporation Application (1966) Official Journal, 2395
  • Texas Instruments Incorporated's Application (1968) Official Journal 2846
At 56:

"Obviously, some programmes are much better than others. There may be numerous ways of solving problems, not all of them efficient. Short cuts may be discovered, or -- in an iterative process -- more rapidly converging sequences may be found. I have no doubt that the art of programming well calls for analytical skills of a high order. There are also numerous criteria that a programmer has, or would be well advised, to keep in mind, such as the desirability to save computer time, or to economise on its storage capacity, or to provide for simplification of 'de-bugging' procedures, or to limit human operations. All this may require great perspicacity and be commercially significant; but it is not a manner of manufacture."

Anton: you can really see the sign of the times in the next statement - namely that the era of the personal computer has not yet arrived.
"Furthermore, as pointed out by Lloyd-Jacob J in Rolls Royce Ltd's Application [1963] RPC 251,255, when referring to section six of the Statute of Monopolies, it is frequently overlooked that that section includes the further limitation that any letters patent and grants 'be not contrary to the law or mischevious to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient. It would be indeed very inconvenient if a person having purchased, or hired, at great expense a machine capable of performing various functions in any desired seequence as may be needed and directed, were to be prevented from the use of some sequences or instructions."
On NRDC (at 58):
"Of the authorities cited on behalf of the applicant, the first relates to an application by Bernhard Joos (1972) Official Journal 3431... The cited passages from the decision seem to convey the implication that anything that has a commercial significance may be patentable. I can find nothing in His Honour's decision, nor in the decision of the full High Court in the NRDC case, which would support such a generalised conclusion. It is true that the High Court refused to apply a strict mechanistic formula seeking to define the words "a manner of manufacture", but the court did not reject the words as such.