That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 11:46:43 UTC 2002

Marcus Brinkmann wrote:
> On Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet wrote:
> > 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.

Probably. You'd have to make it very clear that the
program by itself is not covered by the patent.

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

I don't think I said that. Patents should be available for
all technical inventions, and I believe it makes no difference
whether the invention is based on software. But a purely
mental technique, or a method of doing business 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.

This I disagree with. I believe this is an outdated concept
in patent law. How does it cover new medicines, for example?

> 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.  

I personally believe that all technical inventions should be
patentable, and that it should not matter whether software
is involved. And I also believe that the criterion should not
be whether a novel controlled use of forces of nature is
involved, but rather whether the invention as a whole exhibits
a technical effect. Even if the effect is not novel, or does
not learn you anything about a new use of natural forces.

Based on this, I do not really disagree with the EPO's
current practice. They should not have allowed claims to
programs on a carrier, because those claims do not cover
a technical invention but rather an information structure.

It's interesting to note by the way that the Japan's patent act
defines a patentable invention as a highly advanced creation of a
technical idea utilizing a law of nature, and they allow claims
to computer programs by themselves. So apparently in Japan creating
a computer program uses a force of nature.

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

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