That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 12:30:29 UTC 2002

Xavi Drudis Ferran wrote:
> El Fri, Dec 13, 2002 at 02:43:02PM +0100, Arnoud Galactus Engelfriet deia:
> > But surely I am still using forces of nature in a controllable
> > manner, even if my use is entirely known??? 
> Known stuff does not deserve patents. 
> I'm sorry if the current standards for novelty and inventive step 
> are so low at the EPO that force European patent attorneys to forget this.

I'm not talking about inventive step. I'm not talking about
novelty. What you said first is that things are inventions
only if they use forces of nature in a controllable manner.
So I take something that uses forces of nature, and now you
say it is still no invention because it is already known.

Now I am confused. Can you please tell me how you would
propose that a claim is evaluated for patentability? Where
is the requirement for using forces of nature tested?

> Maybe an analogy will help:
> You can patent a car that flies 10 cm above the road and runs on water 
> (if you can invent it at all), but you can't patent driving from 
> Munich to the Hague, even if nobody has published it before, or even 
> if the road is so confusing that it isn't obvious where to leave the highway. 

I agree with that. But let me try to understand how you would
apply these criteria.

The first one, you look at the prior art and see such a car
does not exist. Hence it is new. Then you take the contribution
which is, let's say, waterproof wheels and a hovercraft engine
that blows air to lift the car up from the ground. This
contribution is not obvious in the prior art and hence this
invention involves an inventive step.

Where is the evaluation of using forces of nature? Would this
be part of the inventive step evaluation? Or would you assess
this *before* you look at the prior art?

Now the patent is granted, and someone files an opposition
because he found prior art on using waterproof wheels and
a hovercraft engine on boats. Given this prior art, the
only difference is that it's now used in a car. I would say
this makes the invention obvious. You would apparently say
that using the teaching in a car does not learn you anything
about forces of nature so it is not an invention anymore?

> Applying what is already known is something that will happen without 
> incentives (unless is not practical, and then we don't want it to happen). 

This would seem to allow only patents which use at least one
feature that is novel by itself. Otherwise, I can say all the
features are known, so combining it is obvious by definition.
That does not sound right to me. 

> We should be glad that we can do more things every day with what is already
> known, but that does not mean we need patents for these additional things. 

I think we do, because making combinations of known things can
result in quite useful new technical things. We should encourage
that by allowing patents on it. 

> SOmehow you seem to apply the USA criteria: It's useful, let's patent it. 
> In Europe we need that it's an invention, and not everything is. 

No, I did not say that. But I do think that it should not
matter whether there is a feature that is novel by itself.

> Would you patent cinema? literature? math? Why or why not?

The question is impossible to answer, because there's no such
thing as "patenting cinema". You can patent film projectors,
cameras, arrangements to make 3D sound, cinema chairs, and
so on. You can even patent ways to record a film to make it
impossible for people to make illicit copies with a handheld
camera in the theatre. 


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

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