That anti-patent pamphlet I mentioned

Marcus Brinkmann Marcus.Brinkmann at
Fri Dec 13 17:46:21 UTC 2002

On Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet wrote:
> The EPO thinks it's following the EPC, but not all national courts
> and laws agree with the EPO's thinking. The EU believes the EPO
> is doing the right thing and is now trying to harmonize the laws
> of the Member States.

I think this is misleading, because the EU is not something you can point
the finger at.  There are various commissions, groups and offices in the EU,
and you need to be careful who you mean with such a statement.  I don't
think it is clear that everybody is in agreement with the EPO.  I think it
would be more correct that nobody really has made up their mind yet, or even
given it too much thought.  If you look at the proposal by the commission in
february, september and november, you see three different proposals which
are all full of loopholes.

> It is my belief that a clever attorney can always redraft a
> claim to incorporate a technical effect, but then the claim
> will usually be much more limited in scope. It would be
> restricted to a particular implementation for example.

If you thing of a program to be one thing, and an embedded device with some
in-core program doing the same thing, and treat them differently under
patent law, then that might be an acceptable compromise, although it would
be very difficult to work out the details.

However, please consider two things:
* First, claims will always be very broad, at least as broad as the attorney
can make it.  For example, the claim will talk about a client and a server,
signals, etc.

* Second, the patents are harmful to our economy purely because they exist.
It is almost impossible for anyone to really check all patents for possible
conflicts while developing a software program, so there is no legal
security.  Furthermore, the threat to sue because of patent infringement can
be enough to hinder economical success and progress in the software world.
After all, how far reaching a claim really is will always be difficult to

And please also realize what you just said.  You said that everything will
be patentable.  Is this truely what you want?


> > > machine is patentable, then it should not make a difference whether
> > > the behavior is caused by hardware or software. But making and
> > > selling of the program separate from the machine should not be
> > > patentable, just like making and selling a blueprint for the machine
> > > should not be covered by patents.
> > 
> > But if the only innovation is in the software, the machine should 
> > not be patentable. 
> That is where we differ. I believe it is illogical to say "the
> innovation is in the software", because using software is not
> an innovation. Making a machine do a novel thing is an innovation,
> no matter how you make the machine do it.

The thing is that an invention means that we learn something new about the
forces of nature.  If a machine consumes half the memory with program A
rather than with program B, just because it is a logical consequence because
the abstract properties of the program B are such that it requires less bits
than program A, we have learned something about logic but nothing about

Thus, it should not be patentable.

Now, you are right in that the EPOs action is the way you described it
rather than me.  However, I would hope that you also agree with me that how
I said it is how the law requires it to be.  Then at least you would
acknowledge that the EPO is acting against the current law.  This would
still not decide what is the best law to have in the future, but at least we
would get out of the need to have artifical constructs like "technical
effect" and would get a chance to start to discuss what should be patentable
without harming the economy, rather than what is legal today.


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

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