That anti-patent pamphlet I mentioned

Fri Dec 13 12:29:54 UTC 2002

Marcus Brinkmann wrote:
> On Wed, Dec 11, 2002 at 01:32:36PM +0100, Arnoud Galactus Engelfriet wrote:
> > 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.

No, it means that a computer program by itself cannot be patented.
A hardware device that contains some software can be an invention,
even if the invention resides in the software. If "program as such"
is 'only the program', then adding a programmable hardware device
makes the claim more than 'only the program'. So "hardware+program"
is an invention.

Keep in mind there is a difference between "invention" and
"having an inventive step" in the EPC. 

> So why do we have to have absurd discussions as to what "as such" means?

If you want to call it absurd, fine, but then we're through
debating.

> 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.  

Of course a court can set aside or override previous decisions,
especially in countries where court rulings are not binding
precedent anyway. But it happens even in common law countries that
the SC overrules itself.

>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).

Either that, or to change the law to accomodate the new direction
chosen by the court. 

> > 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.

Sorry, I meant software-based inventions. I.e. inventions which
can be at least partially realized using software.

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

Programming is applied mathematics, just like engineering
is applied physics. Applied sciences are patentable subject matter.

> > 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've got a list of examples at
http://www.iusmentis.com/patents/businessmethods/epoexamples/
Not all of them really establish a technical effect, which IMO
illustrates how difficult it is to define this properly.

Technical effects:
Reducing the bandwidth between clients and servers: EP 407 026

Using a second, separate channel to authenticate someone
makes a system more secure: EP 416 482

Avoiding the need for storage on a client system in a Web
shopping system: EP 784 279

Integrating a PIN card and a SIM card in a single device: EP 929 880

(hyperlinks to the patents are on the above-mentioned URL)

Keep in mind "technical effect" means something is an invention,
even though the solution may be obvious. For example, using an
out-of-band channel to receive a password is a technique that's
known per se. But it achieves the technical effect of making
the system more secure. The invention would probably be obvious,
unless they were the first to come up with the concept of
out-of-band channels.

Some more examples. Saving memory, increasing speed, improving
security, operating a user interface (T 236/91, T 59/93), configuring
the operating system (T 265/92), coordinating and controlling
internal data (T 6/83), or assisting in solving diagnostic problems
in data communication (T 216/89) all are technical.

A system that can manage a pension fund is an invention, even
though it uses software for 90% of the claimed features. It
was deemed obvious because managing a pension fund is a business
method (T 931/95).

Processing physical data is technical. Physical data may be, for
example, data representing an image (T 208/84) or data representing
parameters and control values of an industrial process (T 26/86).
However, monetary values (T 953/94), business data (T 790/92) and
text (T 38/86) are not physical data. 

[T = EPO Board of Appeals decision]

>   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).

That is not fair, you don't know anything about me yet you
presume to know what I am after or why I am discussing this.
I can say all kinds of nasty allegations about you too, but
I don't. Let's keep it polite, please?

> > > 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?
> > http://www.intertrust.com/main/home/press/2002/020624_broaden.html
> [...]
> > http://www.eolas.com/zmapress.htm
> [...]
> > http://www.zdnet.com/zdnn/stories/news/0,4586,2353458,00.html
> [...]
> > http://www.idg.net/idgns/2001/06/05/UPDATEATTSuesMicrosoftOver.shtml
> > 
> > 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?

I am not so sure anymore I understand the point we're arguing
here. Should I cite examples of IBM sueing a small company for
patent infringement? Or cite proof that the alleged infringer
knew the patent was invalid?

Kind regards,

Arnoud Engelfriet

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/