Software Patent of the Week: A Poster Child for KSR

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week I look at a dispute between IBM and a company called PSI, which sells software to emulate the functionality of IBM’s mainframe computers. IBM filed a complaint requesting a declaratory judgment that, among other things, PSI’s software infringes several of IBM’s patents.

Here is the oldest of the bunch, “Program controlled rounding modes.” I’ll just quote from the patent itself:

In past architectures, rounding was provided either by means of a mode which controlled the rounding on all instructions, or by means of special rounding instructions. Each of these schemes has advantages and disadvantages. The mode has an advantage when a particular rounding mode is desired for an extended period of time. The special instructions have an advantage when a specific rounding is required for a single operation.

It would be advantageous, however, to have a machine which incorporates both a rounding mode and a rounding instruction.

So what’s IBM’s brilliant solution?

The present invention overcomes the above, and other, prior art limitations by providing a machine having a default rounding mode that may be overridden by a rounding mode designated by an instruction. The current machine rounding mode is stored in a register, and an instruction includes a field for specifying whether rounding should be performed according to the current rounding mode or according to another rounding mode during execution thereof.

This is exactly like saying “some past automobiles have offered cup holders. Other automobiles have offered spoilers. The present invention overcomes the above, and other, prior art limitations by providing an automobile having both cup holders and a spoiler.” Or, for that matter, like saying “some past automobiles have offered adjustable gas pedals. Other automobiles have offered electronic throttles. The present invention overcomes the above, and other, prior art limitations by providing an automobile having both an adjustable gas pedal and an electronic throttle.”

There is an infinite number of potential “inventions” that consist of simply taking two random objects and combining them. It’s just nuts to grant a patent on all of them. If the Supreme Court rules for KSR next spring, it’s hard to see how this patent would survive.

It’s also worth mentioning the broader context of this case. This is a transparent attempt by IBM to use its patent portfolio to prevent competitors from cloning its mainframe computers. Had IBM managed to pull a similar stunt against Phoenix and Compaq in the early 1980s, there never would have been a market for PC clones, and the modern PC industry would be very different–and, I suspect, substantially less competitive.

Luckily, the courts were substantially more skeptical toward software patents in the early 1980s than they are today. As far as I know, IBM never tried to use patents to drive PC cloners out of business–most likely because they would have lost in court. Unless the Supreme Court comes out strongly against these kinds of trivial patents, I fear the outcome will be different this time.

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