That anti-patent pamphlet I mentioned

Xavi Drudis Ferran xdrudis at
Sat Dec 14 01:19:14 UTC 2002

El Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet deia:
> xdrudis at wrote:
> > You  are basically saying, to use an analogy from the FFII, I think, 
> > 
> > 3 EUR + 3 EUR = 6 EUR 
> > 
> > is not patentable, because it handles no technical data 
> >  
> > 3 l of fuel + 3 l of fuel = 6 l of fuel 
> > 
> > is patentable because it is technical. 
> Not really, but it comes close. The invention would be something
> like reducing the amount of fuel in a motor, which is technical,
> and this reduction is achieved by having a program compute the
> amounts in two separate fuel tanks or something. 

Tanks are known, the motor is known, adding the amounts is known...
You can draw up that patent without a laboratory, and without any 
investment in research that needs protection. It is not an invention.
> > This is impossible for me as a programmer to understand since the 
> > exact same program perfoms both functions. If you prohibit (monopolize)
> > one you prohibit the other, and anything that solves the problem
> > would be usable for fuel and therefore infringe. 
> The fact that it's done by a program is irrelevant. It would
> be the motor with its control means that would be the invention.
> And you can't prohibit what's outside the claims, so using
> the same solution for money reduction is not infringement.

Most software patents claim a computer programmed such that... 
or using a computer so that... claiming any computer using a program. 
And even those that claim only a motor embedded computer, or anything, 
lack inventive step. The person skilled in the art knows there are 
motors, tanks, and computer that calculate whatever is needed. Combining 
them is straightforward. 

> 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.

Then I better argue with the EU instead of with you :) ?
Few people think the EPO is doing the right thing. 
The laws are already harmonized, they're just more or less 
abused depending on each judge. Differences aren't bigger 
between states than between judge in one state. 

Besides, I odn't care what the EPO thinks. They have no rational 
explanation of their interpretation. 

> See EPO BoA decision T 931/95, the pension benefits case.
> Even though the method claim used software, it was not an
> invention.

I bet Sweetman had heard of it, but as you say ...
> 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.

No it would not if the technical effect is as general as to 
cover all implemetations. It is only the wording and not the 
content what the EPO checks, so you just have to speak of 
server, client, signals, means, memory... and those are the 
only realisations possible for your algorithm, but you'll get 
a patent on it anyway.

> EPO practice is to say that if an invention as a whole exhibits
> a technical effect, it is patentable (although you must also
> check novelty and inventive step). It is irrelevant whether 
> software is part of the claimed invention. However, because then
> all attorneys will claim "software interacts with hardware and
> so it's always technical", they came up with the further technical
> effect that must be more than ordinary interaction.

This is EPO nonsense. Everything has a technical effect, if 
you don't require any novelty and inventiveness in the technical 
> Basically, if you ignore the fact that a step or feature is
> realized with software, and you still have a technical effect
> then you have a patentable invention.

If you ignore any innovation in the software, and still have 
a technical teaching, then it's worth a patents. That's how it 
used to be and how it should be. 

what you present is like saying "if you ignore the fact that 
steps are taken by the driver, and the car still takes you 
from Munich to The Hague, you have a patentable car".

you can't ignore where is the innovation unless you want 
unlimited patentability (and the patent system in a crash course)

> They seem to think it conforms to the letter.
They don't seem to be able to exaplin their thoughts in a rational way. 
> > 
> > This sounds absurd to me. A patent prohibits use of an "invention". The
> > main use of software is by programming a machine with it. 
> Yes, but the patent would prohibit the using or selling of
> the programmed machine. Not the act of programming.

The act of programming so that nobody can use the programmed machine 
does not need prohibiting, thanks.
> > If you can't patent the program but can patent any machine programmed 
> > to use it, then nobody can use a machine programmed with the program, 
> > so nobody can use the program, so the effect is the same as patenting 
> > the program, except for marginal uses (as an expressive work, or 
> > as mere transmitted ifnormation). 
> Exactly. But since it was believed in 1973 that software is
> not a "thing" (just like a blueprint isn't a "thing"), they
> made it clear it could not as such be patented. Just like you
> can't patent a blueprint, but you can patent a machine built
> in accordance with the blueprint.

To patent a machine built according to a blueprint it is not 
enough that the blueprint is new (for instance painted in red 
instead of black ink). The machine most be new and inventive.
General computers are not new nor inventive anymore. So those 
apparatus or methods charaterized by having or used a general computer
according to an (innovative) program, should not be patented.
> > If waht you propose is not patenting _any_ machine programmed 
> > with the software, then it is only fair to apply novelty and inventive 
> > step to the machine, not the software. 
> The tests should be applied to the programmed machine, not the
> unprogrammed machine. The software *in the machine* makes the
> difference.

So you would patent your favorite film, because the tape in the VCR 
makes the difference?. can you claim a method and apparatus for 
sending signals to a monitor so that the man says "nobody is perfect"
and kisses the other man dressed as a woman and after that 
the message "the end" appears ?. Assume Marylin had not recorded 
that film yet and there's no such film. 
 If you consider the tape in the VCR as a whole, it might be a 
patentable machine, wouldn't it?. 

> 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.

If using software is not an innovation, changing the software on 
prior art machines can't do a novel and inventive thing. 

If my computer, no matter with what peripheral attached, 
started to do novel things I would be a little afraid of ghosts.

> A particularly programmed DSP works differently from an
> ordinary DSP. Why is it an invention if the programming is
> done with hardware chips, but not if it is done with software?
A particulary programmed DSP is just a ordinary DSP, and if it 
works different, it is broken. DSPs are done to be programmed,
and working according to its program is its function. There's 
nothing novel in a new program

When I said "the innovation is in the software earlier" I meant 
the only reason prior art devices didn't do the same was because 
of a different software. That proves there is no new teaching on 
forces of nature, because we're using it according to the hardware 
we already had. 

> > > The EPO Guidelines are binding to no one except examiners. The
> > > president can issue new Guidelines whenever he feels like it. I don't
> > > think this is a very strong argument.
> > 
> > My argument is the President can not decide tomorrow that the EPO 
> > is going to grant patent of sexual intercourse positions. 
> No, but he can instruct examiners that such methods are to
> be examined in a particular way. Just like he did with business
> methods and software.

No he can't. He can't tell the examiners to ignore exclusions 
on patentatability for social acts and games. Just as the head of the 
police can't order the policemen to arrest all people of a gender, 
color of skin or religion, even if it is their boss. Government 
officials don't have absolute power, they can only do what the 
law allows them to do.

Now you'll say he thinks he can. But if the head of the police 
thinks he can arrest me because of gender, religion or color, I 
won't give a damn about his thought and will try to get him to 
a court. 
> > What the 
> > president decides must respect the EPC. Since the guidelines of 
> > 1978 respected the same EPC as we have now, reinstating them would 
> > be consistent with the EPC. More consistent than current guidelines.
> Surely it is possible to update your guidelines if you have
> a new insight in how the EPC is to be interpreted? Furthermore,
> the prez has no choice. If the BoA says it's to be one thing,
> the examiners should adhere to that otherwise applicants are not
> treated fairly. And so the examiners should be instructed to
> do what the BoA said.

The President and the Board can't ignore the EPC. They can only 
move insdie the limits of the EPC. 
Do you think we'll get anywhere this way?. You think the EPO is 
acting legally, I think it's not. 
> >  Now it is no because the EPO does not follow the
> > EPC. The solution if changing what the EPO does, not the rest. 
> That's one solution. Changing national laws so it follows the
> EPO's interpretation of the EPC is another. And it seems
> that's what the EU wants.

If the EPO interpretation was consistent with the EPC it would 
be an (undesirable for economical and ethical reasons) option. 

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