That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 12:18:26 UTC 2002

Xavi Drudis Ferran wrote:
> El Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet deia:
> > 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.

You're saying it is obvious to combine these elements, and I
agree with you there. So it is not _inventive_ to combine this.
But is it in principle possible to patent a motor with a tank
and some processing logic? Is it 'statutory subject matter' as
the Americans call it?

And why is a laboratory necessary to make something patentable?
If I have a brilliant new insight in how to apply a natural
force to an existing device to make it work more efficient,
surely I can patent that even if I don't have a lab?

> > 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. 

Using one particular program that would exhibit one particular

> 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. 

So it is obvious. But is it statutory? 

There are many inventions that today are known, or today would
be deemed obvious. But surely the lightbulb or the diesel engine
is an 'invention', even today?

What I'm saying is that "being an invention" is a requirement
separate from "being nonobvious to a skilled person". You apparently
combine the two. This seems awkward to me, because then you no
longer have a way to distinguish between "this is in principle
patentable but given the prior art it's obvious, and this is
in principle not patentable".

How do you distinguish between something that is obvious because
it uses a computer program, and something that is obvious because
the prior art suggests to use that something?

> > 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. 

I don't understand what this means. Patents are *supposed* to
cover all implementations ("embodiments") of an inventive idea.
Otherwise it would be really easy to get around a patent.

Of course all covered embodiments would have to be novel and
inventive. But I can have a patent on for example a motor coupled
to a cam with a cam follower which drives a shaving head, and
then you'll be unable to make any shaver which uses a cam with

> > 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, 

That is not correct. Business steps, like computing the value
of a stock portfolio or an interest rate, have no technical effect.

> if 
> you don't require any novelty and inventiveness in the technical 
> contribution. 

If there is no inventiveness in the technical contribution, the
invention does not have an inventive step and hence it is obvious.
But obvious things are still inventions - they are *in principle*

Today it is obvious to use a battery if you want to get rid
of a power cable. Still, a device with a battery is in principle
patentable. But if that's all, the device is deemed to be known
or obvious and so the application is rejected.

On the other hand, a novel way to perform surgery is in principle
not patentable, no matter how inventive it may seem to a surgeon
skilled in the arts. 

> 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".

Yes, sure. A car is by definition patentable because it is a
device, an apparatus.

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

Something cannot be come non-statutory depending on the prior art.
Or are you saying that in 1932 using a computer program to
perform steps X, Y and Z would be an invention, but in 2002 it 
would not? That's crazy.

> > They seem to think it conforms to the letter.
> >
> They don't seem to be able to exaplin their thoughts in a rational way. 

I just tried. You don't agree with their reasoning, but that
doesn't make them any less rational.

> > 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.

Of course. But the novelty would be illustrated in the blueprint
according to which the machine is built. Just like the novelty
of a programmed computer resides in the program.

Building a machine according to a blueprint so that you
obtain a new and inventive machine is exactly the same as
loading a computer program in a computer so that you obtain
a new and inventive computer.

> 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.

Why not? If it makes the computer exhibit novel and inventive
behavior, surely it's a different machine?

> > > 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?

Of course not. The film is like the program as such, it's pure data
and not patentable.

> . 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

According to the EPO, a VCR loaded with a tape is an invention but it
is not new. After all, a VCR is a technical device. 

It could be the contents on the tape is new, but the contents does
not cause any further technical effect, so there is no inventive

> ?. 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?. 

Sure. Aren't VCRs inventions?

The lightbulb is an invention today, not just when Edison came up
with it. Today it is a *known* invention, but it's an invention

> > 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. 

"characterized in that it uses software" is not an inventive step.
But "characterized in that it performs steps X, Y and Z" could
be inventive, assuming X, Y and Z are not obvious. I don't care
whether software is involved.

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

So you never load any software in your computer?

> > 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

If I have two DSPs, and I program them with different software,
I now have two differently acting devices. You are saying they
are identical?

> 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. 

Your conclusion does not follow from the facts you've given.
Why is by definition no new teaching on forces of nature
obtained? It's too easy to say "it's software therefore there
cannot be teaching on forces of nature", because that is the
very thing we are discussing. 

> > 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. 

Yes he can. It's his job to tell examiners what to do. And if
the BoA tells him that something is *not* excluded, there is
nothing wrong with instructing examiners to allow patents on
that something.

> 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. 

If the Supreme Court says it is legal to arrest people based
on gender or religion, then the head of the police most definitely
can issue such orders. 

> Government 
> officials don't have absolute power, they can only do what the 
> law allows them to do.

And if the courts say that it is allowed by the law, what is
the official 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. 

And if the Supreme Court says "yes, it is legal to arrest
you because of your gender", then what? 

> 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. 

I agree that we see this fundamentally differently. But please
understand that they believe they *are* operating in accordance
with the EPC. 

Let me ask you this question. If the European Court for
Human Rights says it's legal for police to arrest someone
because he is a Catholic, would it be within the law to
arrest Catholics?

This is, I think, the basic issue. You are saying that it
would not be within the law, and the ECHR is acting illegally.
I am saying that *because* the ECHR says it is legal, it
is within the law. Even if my understanding of the law is
different. If I disagree with the ECHR, I will have to lobby
to get the law changed.

Kind regards,

Arnoud Engelfriet

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

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