That anti-patent pamphlet I mentioned

Marcus Brinkmann Marcus.Brinkmann at
Wed Dec 11 14:07:41 UTC 2002

On Wed, Dec 11, 2002 at 01:32:36PM +0100, Arnoud Galactus Engelfriet wrote:
> Marcus Brinkmann wrote:
> > On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
> > > Then say it doesn't make sense. "Illegal" means something
> > > more serious, especially to lawyers and politicians, and I
> > > think you're sending the wrong message if you call this
> > > illegal.
> > 
> > I think it is very important to reject the interpretation and any efforts to
> > be dragged into a bottomless discussion of what the law might say.  The law
> > is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.
> The law is not very clear, because of that "as such" restriction in
> 52(3). What the heck does that mean? If it doesn't mean anything, why
> is it there?

It means what it means.  I am sure you have heard those words before.
A "program as such" is any program, but only that program.  It means that
"only a program" can not be patented.  The clause requests from examiners to
analyse that if a patent claim combines hardware and software, to look
carefully where the novelty and the technology lies.  It must be in the
hardware, because a computer program as such can not be patented.

It is true that the EPO does use this clause to split computer programs into
programs "as-such" and programs "not-as-such".  This interpretation is at
odds with grammar and history of patent law.  It is interesting to point out
that danish and swedish law dropped this clause when incorporating art 52.

So why do we have to have absurd discussions as to what "as such" means?
We have to keep going on with such discussions because the EPO (and current
BGH, and others) are in full realization of working against the law, and
they have to grasp to every straw to justify what they are doing.  Even if
it means to throw over board common sense and logic.

The EPO and evey patent attorney is painfully aware of the restriction
in 52(3).  Otherwise they wouldn't bother so much to construct ambiguities
and miusunderstandings even where they aren't any.  The complexity that
these constructions bring into the discussion are completey artificial, and
they drag a lot of energy out of the participants.  But they will fail to
reach their goal, because eventually clearity and ration will prevail.

> > Don't make it appear as if there was any confusion about what is software
> > and what is technical.  This discussion has already happened in the 50s,
> > 60s, 70s at lengths.  In the words of the German Federal Court of Justice
> > (BGH) in its famous Dispositionsprogramm decision of 1976 (translation by
> > Hartmut Pilch):
> The fact that the German Federal Court of Justice has explicitly
> abandoned this interpretation in more recent decisions shows that the
> subject is still open for debate. Is it not possible for people, even
> Supreme Court justices, to change their views on what is patentable?

The dispositionsprogram from 1076 was an attempt to summarize a discussion
that was ongoing for 20 years at that time.  Since then, other judges are in
the BGH.  Only since about 1992 the BGH is the leader in patent inflation,
leaving behind even the EPO and the patent lobby.  It seems that judge Robbe
is responsible for this change in policy.

Of course a court can attempt to change the meaning of a law by executing
decisions that stretch the meaning of the law and change the interpretation
of sentences that used to be clear a few years before.  However, if that
happens, it is important to notice that even a court can not really judge
against its earlier decisions, so usually very clever constructs and
careful, often ambigious decisions have to be made.  In any case, it is then
the task of the politic to constraint the courts by reinforcing the law
(probably changing the wording a bit so that the clever tricks are not
possible any more).

> TRIPS demands patents in all fields of technology. Excluding
> software-based implementations from patent protection violates TRIPS.

What is a "software-based implementation"?  I don't know that term, if you
could please define it, thank you.

Computer programming is not a field of technology.  Just as math isn't.

> > Please give me one example of a software patent (or claim thereof) where a
> > program should be patentable because it has a further technical effect just
> > like a hardware invention needs to do.  Just one example, and don't forget
> > to describe what the technical effect is, in normal language that can be
> > understood by the people here on the list.
> This question is impossible to answer, since we haven't defined what
> a technical effect is. I can quote you patents with potential
> software embodiments that achieve effects such as a faster working of
> the machine, a higher accuracy of fuel usage in a car engine, a
> better measuring of data, reduced storage capacity for a signal to be
> recorded and so on. Are such effects "technical"? In my opinion yes,
> but what about you?

Then please quote such patent claims which you think should granted.
For now, I am happy to leave the interpretation of "technical effect"
completely up to you, and exercise scrutiny only on the examples you will
come up with.  I suspect that the reasons pro-software-patent people don't
come up with examples is that they really want unlimited patentability, and
don't want to limit themselves to a certain set of examples (nor release
their true intentions).
> > I want to see one middle size company which goes ahead and sues IBM or
> > Microsoft over an alleged patent violation.  Of course, it is also the small
> > companies and last but not least the free software programmers.

> Is Intertrust a middle-size company?
> They all sued Microsoft for patent infringement.

Sure, but our starting point was that you said that if a patent is invalid,
one could simply violate it and say to the patent holder "come and sue me".
In all the four cases, Microsoft simply violated patents and said: "come and
sue me".  But MS is _not_ a middle sized company, it is a very big company. 
It is easy for Microsoft to say "sue me".

Now, how about an example in the other direction?


`Rhubarb is no Egyptian god.' GNU    marcus at
Marcus Brinkmann              The Hurd
Marcus.Brinkmann at

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