Hardware is Like Software? - Ban Hardware Patents

I won't bother demolishing this sad little piece on why software patents are so delicious and yummy, because Mike Masnick has already done that with his customary flair.

But I would like to pick on something purports to be an argument in the former:

One needs to understand that there is fundamentally no difference between software and hardware; each is frequently expressed in terms of the other, interchangeably describing the same thing. For example, many microprocessors are conceptualized as software through the use of hardware description languages (HDL) such as Bluespec System Verilog and VHDL. The resulting HDL software code is downloaded to special microprocessors known as FPGAs (field programmable gate arrays), which can mimic a prospective chip's design and functions for testing. Eventually, the HDL code may be physically etched into silicon. Voilà! The software becomes hardware.

Well, that's jolly interesting, isn't it? Because it means that such hardware is in fact simply an instantiation of algorithms - hard-wired, to be sure, but no different from chiselling those algorithms in granite, say. And as even the most hardened patent fan concedes, pure knowledge such as mathematics is not patentable.

So the logical conclusion of this is not that software is patentable, but that such hardware *shouldn't* be. I'd go further: I suspect that anything formed by instantiating digial information in an analogue form - but which is not essentially analogue - should not be patentable. The only things that might be patentable are purely analogue objects - what most people would recognise as patentable things.

There is an added benefit to taking this approach, since it is also solves all those conundrums about whether virtual objects - in Second Life, for example - should be patentable. Clearly, they should not, because they are simply representations of digital entities. But if you wanted to make an analogue version - and not just a hard-wiring - you could reasonable seek a patent if it fulfilled the usual conditions.