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#title: Tamai 1998: Abstraction orientated property of software and its
relation to patentability

#descr: Prof Tamai of Tokyo University shows how patenting of software clashes
with some of the underlying assumptions of the patent system.  The
patent system relies on requirements such as concreteness and physical
substance in order to keep the breadth of claims within reasonable
limits.  Software innovation however is the art of making processes as
general as possible, i.e. the art of abstraction.  Tamai quotes a set
of patent claims from the SOFTIC symposium of 1993, where patent
officials from JP, US and EU judged the patentability of an example
algorithm at different levels of concretisation.  The European
representative was more willing than his colleagues from US and JP to
grant patents on abstract claims, but even he shyed back from granting
them at the level that really represents the innovative achievement. 
Tamai shows how this inconsistency leads to a series of other
inconsistencies.  Tamai sees only two ways out of the inconsistency:
(1) acceptance of abstract claims (2) exclusion of software patents.

#med: Tamai refers to the exemplary debate about software patentability
between %(dc:Chisum) and %(pn:Newell) in 1986 and then further
elaborates on one of Newell's arguments: the orientation of software
towards abstraction and generalisation.

#hes: Tamai then explains several types of abstraction:

#tWe: Abstraction of procedures

#siW: Abstraction of data

#tnj: Abstraction of objects

#tWr: Abstraction of algorithms

#rmf: Finally, Tamai describes cases where the same algorithm was discovered
independently by different people and it was not trivial to discover
that in fact these algorithms were the same.  The greatest achievement
in these discoveries was in fact in discovering commonalities between
different algorithms and thereby increasing the level of abstractness.

#cla: claim

#stt: Suppose the quick sort algorithm is newly invented and this claim
describes its algorithm as operations on an array in memory.  The
operations are writtenin at a relatively abstract level such as %(q:a
sequence of numerical data are transferred so that they are
partitioned into two data sequences, one having values equal to or
less than the boundary value and the other having values greater than
the boundary value).  Iterative application by recursion and the
termination condition are also described in a similar way.

#Wal: The same quick sort algorithm is described at the detailed level of
programs.  As assumed data structure is an array just as Claim 1 but
the numerical data sequence is represented concretely by a pair of
pointers for the first and the last positions in the array and
operations of data exchange are represented also using pointers.  To
implement recursion, a data structure of stack is explicitly
introduced.

#Wtf: Claims 3 to 6 also deal with sorting but a specific sorting method,
e.g. the quick sort, is not specifically designated.  Claim 3
describes an application of sorting that sorts addresses written on
commodities to deliver in the order of delivery numbers and prints out
the result.  The correspondence between the addresses and the delivery
numbers is given by a table.  The method first determines the delivery
numbers from the input addresses and sorts them accordingly.

#shr: The same processing as Claim 3 but an image reader is used for input. 
Character codes of addresses are obtained by the character recognition
processing.

#adl: In addition to Claim 4, three devices of stackers are added to the
system and they are used physically to sort commodities.

#rsW: The contents are the same as Claim 4 but are described as an apparatus
claim not as a method claim.

#WWk: The European Patent Officer surprised many in the audience by making
more %(q:liberal) judgments than those from US and Japan.  The
Japanese officer left some answers open (expressed by question marks
above), suggesting that he needed to know more details about what the
claims were to look like.

#aat: In his further analysis, Tamai highlights the fact that the real
achievement lies in the abstraction, but patents tend to be granted
more readily for concretisations.  He sees the following problems:

#mui: Tamai summarises

#Wna: and discusses in detail how this inconsistency is at the origine of
several debates, such as

#ohE: Function Claims and the Doctrine of Equivalence

#tyg: Contributory Infringement

#ioa: Finally Tamai concludes that, in order to achieve consistency, two
paths are possible

#ehs: remove the requirements of concreteness, specificity and physical
substance and grant patents to abstract and logical claims

#whW: decide that software and algorithms do not fit into the framework of
the patent system and must be unpatentable.

#ueo: The first option would achieve logical consistency within the patent
system but undesirable results toward the outside.  Tamai summarises:

#giW: It would be desirable to have a way of rewarding the inventor who
invented a highly general algorithm or software.  However the harm of
admitting too broad rights for abstract and logical claims will
surpass its merits.  On the other hand, the current practise of
issuing software-related patents if the claims are combined with
hardware and written concretely and specifically is essentially
against the nature of software.  Thus, the conclusion is we have to
resort to other means besides patents, e.g. copyright, for the
intellectual property protection.

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