No.

If they're anything like the Itanium ISA patents, then Intel owns the rights to the instructions themselves and their meanings. Emulation would be infringing.

I'm a little ignorant on this, but how can you own the rights to instructions? Isn't that the same as owning the rights to an API, or the naming and operation of functions? I mean, would I be infringing if I re-implemented the C standard library, or the standard library of some language with a copyrighted spec?

How can you even patent something like that? It goes beyond software patents, as it appears to me. But again, I'm very ignorant of this.

Patents are entirely unlike copyright in this, in that you can come up with a totally independent implementation, and still infringe the patent. The patents are very similar to audio or video codec patents - for example, they patent the process of executing a particular instruction.

For example, here's Intel's (expired) patent on the CPUID instruction:

https://patents.google.com/patent/US5671435A

It claims the particular encoding of the return data. Good luck implementing CPUID in an emulator without infringing.

I read the claims of that patent, and they are all hardware claims. As in, the claims are literally in terms of registers in a CPU. I would imagine in an emulator would have data structures in memory to represent these registers, but it won't directly infringe these claims as written.

There is, however, the Doctrine of Equivalents. This says that if something uses different elements / components from what's in the actual claims, it could still be argued to infringe the patent if those elements perform a role equivalent to the elements in the claims. But I'm not quite sure how far that could be stretched.

Yeah, it'll depend on your jury whether they consider an emulated register to still be a register as described. However, what's super common in these sort of patents is to duplicate the same claim language several times with slight variations to cover all implementation types. If you look at claim 9, it gives a much more broad heading:

"A computer system coupled to receive and respond to computer instructions from a program routine comprising"

In later patents, they got even more clever and just say a "method" rather than a "processor", and explicitly define registers as potentially being emulated in the description (search AVX2 patents if you're curious)

If you don't have a hardware implementation, you are trying to patent an abstract idea, which Alice Corp. v. CLS Bank International found to be invalid.

Nope, an abstract idea has always been invalid. Alice vs CLS Bank found that "on a computer" wasn't a sufficient inventive step to transform an abstract idea into something patentable [1]. This can be used to invalidate a claim, but won't shrink the scope of a claim to hardware only (as then, if software was the only inventive step, it would be a pure abstract idea).

The USPTO certainly seems to think an ISA is patentable, and I haven't seen a court disagree yet.

[1] https://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Intern...

I'm not entirely sure what you mean. Do you mean if you have a patent that includes hardware, then that patent would prevent emulating the hardware in software? Wouldn't any software patent then be possible, by the simple expedient of describing it in the patent application as running on a custom single-purpose hardware device?

If you come up with a patentable idea, you can specify its implementation in either hardware or software in the patent (or just be ambiguous). However, if your idea alone is unpatentable, you can't add "implement it in software" to make it patentable, according to Alice vs CLS. Basically, Alice vs CLS removes a certain class of software patents, but certainly not all.

Yes, any software patent is possible by describing it as running on a processor. See for example [1], which has the very common claim prefix of "A machine readable storage medium storing a computer program..." Alice doesn't invalidate these patents unless, by removing that text, the remainder of the claim is unpatentable.

Because software patents are still legal, there's no need to attempt to describe them as running on a custom hardware device - you just specify them as software. Specifying custom hardware would unnecessarily reduce the scope of your claim.

[1] https://www.google.com/patents/US6126544

We're not talking here about what is right, or even what is correct under the law. We're talking about what a set of lawyers think they can plausibly use to bring an infringement case and not be laughed out of court. A broad spectrum of possibilities.

Actually this sub thread is about what is right.

> To be fair Intel has done a lot of work to make the x86 as great as possible. Patent lawsuits are awful. I'm not sure just copying someone's technology and emulating it without paying a license fee is all that great either.

Same way you can own the rights to touch screen gestures I guess?

Sounds pretty close to owning math. I call addition!

Hmmm. So for example, a strength of X86 is that all reads and writes are synchronized by design, guaranteed by hardware. So if two threads call a write instruction, those instructions are guaranteed to happen in the order they were written in. You have no such guarantee on ARM. What's more, Intel has a patent for this.

So now, if the same algorithm is implemented in software to emulate X86 platform on ARM, how is that not infringing on the patent?

how can it possibly infringe on any kind of patent to "promise that commands are executed in order".

maybe thats a difficult problem for hardware to solve. for software, thats just how software works.

maple is solving differential equations and that may have at some point been difficult to write software for. if they have a patent for that, then so be it. I start a company that hires professors who are really good at solving differential equations, and sell the results. basically what maple yields, except produced in a different way. am i infringing on the patent?

patents patent technology. not results. you cant have a patent for "a rocket that flies to the moon" in the sense that now nobody else can build rockets flying to the moon. you can have a patent for a way to store liquid oxygen in tanks to make it yield the energy required to get a rocket to the moon. patenting concepts of things you want to do is at least morally wrong.

a hardware patent should not be capable of preventing someone from writing software that does the same thing.

its like patenting a drug that cures cancer and then using that patent to prevent oncologists from curing cancer by applying chemotherapy.

There seems to be a lot of mingling here of the way things ought to be and the way they are.

Reminds me of a list of "copyright myths" I saw in school.

The first nine were, "you think you can do this simple thing, this reasonable thing, or have any freedom whatsoever? SCREW YOU."

The tenth claimed it was a myth that copyright levied oppressive burdens on the consumer.

Lesson: With any type of intellectual property protection, you can usually just presume it works in the most totally disgusting way imaginable.

Laws operating in a grotesque and unfair way is hardly confined to intellectual property law.

there is. i have no idea how things actually are.

but laws should not contradict common sense.

But they often do.

Do I smell another Oracle v. Google style bullshit lawsuit?

When it's for the matter of compatibility, are patent laws applicable?

Yes; compatibility necessities are functional rather than expressive and therefore an exception to copyright protection. But patents are about making monopolies on functionality; a compatibility exception would undermine the whole point.

Remember that Zilog had another different instructions name only to avoid legal problems with Intel and the Z80 being binary compatible with the 8080