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Can I patent a machine that stores electric charge in multiple capacitors each being addressed by a transistor on a chip in a specified way leading to a predefined current output? In other words, is it conceivable to patent software by defining it through the electric charge that is being stored in the memory components? I guess to completely disclose the invention, I then would need to provide details on how I measure the charge in each capacitor. But if it was possible to do that, which it is, could software be patented that way?

On a side note, what does it mean when it is said that software is not patentable "as such"?

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2 Answers 2

First, many many so-called software patents are issued every week by the USPTO. Exactly what falls under the term software patent is unclear. All the way up to the Supreme Court the system can't draw a clear line between what is abstract (and thus unpatentable) and what is non-abstract in computer-implemented inventions. In practice software based systems that do non-trivial things that are claimed in terms of a computer system configured (i.e. Programmed) to do the following or a method carried out by a computer with a processor doing something way outside of what a human could practically do with pencil and paper are patented all the time.

Long before the courts acknowledged software patenting, people were patenting systems described in terms of hardware that could be also implemented in software. You do not need to go to the level of charge on capacitors. "An electronic system that takes in the following input, does X and Y and Y on the input and outputs A, B, C" could be made of pure hardware, could be made with a set of interconnected micro controllers (running firmware) or could be made on a general purpose computer.

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There are really two questions in here, but I think I can answer them both.

First, the device you describe is commonly known as a Dynamic Random Access Memory (DRAM) and is a standard part of a modern computer - and has been for the past 25 years or more. Using one to store software is not novel in the slightest.

If you have a novel way of making a DRAM, then that is a hardware invention and could be patented quite legitimately. Such a patent would be totally independent of any use it would be put to.

To answer your second question, I would refer you to these articles which were written by some exceptionally knowledgeable and articulate people. The short version is: software is mathematics, and mathematics is not patentable subject matter.

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The heading of that Groklaw article says "particularly in support of the claim that software is mathematics and hence unpatentable subject matter." The fact that there are many who believe software should not be patentable does not change the fact that there are hundreds of so-called software patents issued every week. –  George White Nov 27 '13 at 23:23
True, but the validity of such patents is questionable. The USPTO follows an interpretation of court decisions; the CAFC is generally in favour of software patents (via the mechanism of involving an apparatus as the questioner suggested); while the Supreme Court has, in the few cases where it has returned a decision on the subject, consistently overturned the CAFC and, without explicitly saying so, has made it clear that it is against software patents. –  Chromatix Nov 27 '13 at 23:48
You totally got it that I was referring implicitly to DRAM. What I'm trying to get at is that there is this test for patentability: machine-or-transform. Is the invention attached to a machine, or does it carry out a transformation of matter. Now, strictly speaking, can one not regard the software to transform the electric charge in the capacitors? In the set you recommended (quite comprehensive), is there an article that specifically addresses what "as such" means? –  TMOTTM Nov 28 '13 at 9:40
Consider a steam locomotive, travelling under its own power at 60mph. The line ahead gets a bit steeper, so more power is required. The driver adjusts the cutoff control, which effectively makes a certain lever in the valve gear longer, so that the engine works harder. Does this simple, routine action transformatively make a new machine out of the steam locomotive - while, I remind you, it is hurtling along the track? The idea is clearly absurd - and so is the idea that using a DRAM for its designed purpose does so. –  Chromatix Nov 28 '13 at 11:22
As for the right article to read, you may wish to start with this one: groklaw.net/article.php?story=20110908075658894 –  Chromatix Nov 28 '13 at 11:24

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