I see where you're coming from. To allow patents on systems which have software as a component allows all software patents, because all software must necessarily be a component of an electrical system.
Let me clarify my thoughts and perhaps express my position a bit more clearly.
I think that there are fields where patents provide valuable protection, as they were intended to: my canonical example being mechanical systems. These fields, which should continue to be protected by patents, can often benefit from the introduction of software control. In some cases, non-software inventions are only really practical with software control (e.g. canard aircraft)
My (revised) position is that a ban on software patents is an overreach if it makes non-software inventions that use software unpatentable. Perhaps my interpretation was naive, but I thought that this was the point of the embedded software clause.
I the question I arrive at which I can't answer is, can such a distinction be made in law?
I think it's a misinterpretation to say "allow inventions that contain embedded software to be patented" means "software patents are allowed".
The way I'm reading this, it means that if a larger invention happens to include some embedded software, that larger invention is patentable. So, if you invent a really cool electromechanical device (robot overlord), it doesn't become impossible to patent the mechanics just because they need some control software to work.
Which is pretty reasonable, IMHO. Patents were created back when inventions were primarily mechanical; since the hardest part about mechanical design is the initial concept. Unlike software, where million dollar ideas are a dime a dozen, and the real difficult is implementation. ( I speak from experience; I work in mechatronics, where design is a combination of software, electrical, and mechanical).
As long as the embedded software isn't patentable in and of itself, I see nothing wrong with this.
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I see where you're coming from. To allow patents on systems which have software as a component allows all software patents, because all software must necessarily be a component of an electrical system.
Let me clarify my thoughts and perhaps express my position a bit more clearly.
I think that there are fields where patents provide valuable protection, as they were intended to: my canonical example being mechanical systems. These fields, which should continue to be protected by patents, can often benefit from the introduction of software control. In some cases, non-software inventions are only really practical with software control (e.g. canard aircraft)
My (revised) position is that a ban on software patents is an overreach if it makes non-software inventions that use software unpatentable. Perhaps my interpretation was naive, but I thought that this was the point of the embedded software clause.
I the question I arrive at which I can't answer is, can such a distinction be made in law?
I think it's a misinterpretation to say "allow inventions that contain embedded software to be patented" means "software patents are allowed".
The way I'm reading this, it means that if a larger invention happens to include some embedded software, that larger invention is patentable. So, if you invent a really cool electromechanical device (robot overlord), it doesn't become impossible to patent the mechanics just because they need some control software to work.
Which is pretty reasonable, IMHO. Patents were created back when inventions were primarily mechanical; since the hardest part about mechanical design is the initial concept. Unlike software, where million dollar ideas are a dime a dozen, and the real difficult is implementation. ( I speak from experience; I work in mechatronics, where design is a combination of software, electrical, and mechanical).
As long as the embedded software isn't patentable in and of itself, I see nothing wrong with this.