That anti-patent pamphlet I mentioned

Sun Dec 15 13:00:05 UTC 2002

Marcus Brinkmann wrote:
> On Fri, Dec 13, 2002 at 01:29:54PM +0100, Arnoud Galactus Engelfriet wrote:
> [about the meaning of "as such"]
> > No, it means that a computer program by itself cannot be patented.
> > A hardware device that contains some software can be an invention,
> > even if the invention resides in the software.
> 
> That's what the EPO wants it to mean, but that is not supported by the law
> and any rational interpretation of it.

No, the EPO seems to think that even a program by itself can be
patented. I believe "program on carrier" is not statutory
subject matter.

>  It is the EPO which invented the
> term "technical effect" to justify granting software patents, but the
> distinction between "a program as such" and "a program with a technical
> effect" is not a distinction you can derive from reading the law.

A program as such is an example of a thing without a technical
effect. Hence it is unpatentable.

> > Keep in mind there is a difference between "invention" and
> > "having an inventive step" in the EPC. 
> 
> Can you remind me of that difference?

Article 52(1) says

European patents shall be granted for any inventions which are
susceptible of industrial application, which are new and which
involve an inventive step.

I can only conclude that being an invention is a requirement
separate from the other three. If something is not an invention,
then no patent shall be granted for it. Even if the something
is new and involves an inventive step.

Looking at 52(2), it starts with "the following in particular shall
not be regarded as inventions within the meaning of paragraph 1:"
So you have to determine whether something is to be regarded as
an invention when deciding whether to grant a patent for it.

Looking at 52(4), you see that medical treatments are deemed
to be inventions which are not susceptible of industrial application
within the meaning of paragraph 1. So apparently a medical
treatment is an invention but it is not industrially applicable.

> > Sorry, I meant software-based inventions. I.e. inventions which
> > can be at least partially realized using software.
> 
> Can you give an example?  I think it is crucial to find out if the invention
> is in the software or in the hardware.  

I think it is totally irrelevant whether the inventive aspect
is in software or hardware. 

> If it is just some new hardware
> invention with some software (inventive or conventional) slabbed to it, I
> have no concerns.  If it is software with just some "technical vocabulary"
> slabbed to it, to make it look more technical, I have a fundamental
> objection.

Let's say I have a car engine in which fuel injection is regulated by
a valve coupled to a sensor. This way the car engine operates with a
certain efficiency, because the signal from the sensor can open and
close the valve. The inventive aspect is in the use of the valve and
sensor. Is this an invention? I would say yes. And if the prior art
does not teach using valves and sensors to regulate fuel injection,
then the invention is not obvious and hence involves an inventive
step.

Now, I come up with an additional invention. I am going to couple
a programmed chip to the valve. The chip allows a much more precise
evaluation of the output of the sensor so the valve can be opened
and closed to allow a much more efficient fuel intake. Assuming
the invention from the previous paragraph is the prior art, the
inventive aspect would be in the use of the programmed chip.
The chip is known by itself. Is this an invention? I would say
yes, because just like the previous invention it provides efficient
fuel intake. 

How would you evaluate these patent applications?

> > > Computer programming is not a field of technology.  Just as math isn't.
> > 
> > Programming is applied mathematics, just like engineering
> > is applied physics. Applied sciences are patentable subject matter.
> 
> Irregardless of whether programming is applied math, I have never heard
> before that all applied sciences are patentable subject matter.  I think
> you just made that up.

It's what I believe is the realm of patent protection. 

> > Technical effects:
> > Reducing the bandwidth between clients and servers: EP 407 026
> > 
> > Using a second, separate channel to authenticate someone
> > makes a system more secure: EP 416 482
> > 
> > Avoiding the need for storage on a client system in a Web
> > shopping system: EP 784 279
> 
> The above sound just like what we call "software patents", ie, patents on a
> program as such, rather than a technical invention that teaches us more
> about the forces of nature.

That's probably correct. I do not think any of these can show
a novel use of natural forces. 

> > For example, using an
> > out-of-band channel to receive a password is a technique that's
> > known per se. But it achieves the technical effect of making
> > the system more secure. The invention would probably be obvious,
> > unless they were the first to come up with the concept of
> > out-of-band channels.
> >
> > Some more examples. Saving memory, increasing speed, improving
> > security, operating a user interface (T 236/91, T 59/93), configuring
> > the operating system (T 265/92), coordinating and controlling
> > internal data (T 6/83), or assisting in solving diagnostic problems
> > in data communication (T 216/89) all are technical.
> 
> If saving memory is a technical effect, then it's not a far step (certainly
> only an argumentative step) to either accept that all programs have a
> technical effect, or that you can every program technical by applying it to
> some specific technical problem (I guess every patent attorney who is worth
> his money is able to do so easily). 

I think there is a difference between "technical effect" and
"solving a technical problem". Technical effect makes something
an invention, solving a technical problem [in a nonobvious way]
makes something inventive.

And yes, all programs exhibit a technical effect. This is why
the Board came up with the "further technical effect", as
otherwise all programs would be patentable. So only if the
saving of memory is a "further" technical effect is the
program patentable.

> This is exactly what I said above: the
> distinction isn't a distinction.  All programs are either programs as such
> or programs with a technical effect or both.

Programs that lack a further technical effect are programs
as such. That's what the EPO currently thinks.

> > Processing physical data is technical. Physical data may be, for
> > example, data representing an image (T 208/84) or data representing
> > parameters and control values of an industrial process (T 26/86).
> > However, monetary values (T 953/94), business data (T 790/92) and
> > text (T 38/86) are not physical data. 
> 
> This is even scarier, and if you can write the above pargraph with a serious
> face you are probably lost to the pro-software-patent lobby and need to be
> rescued :).

The above paragraph reflects current EPO practice, and if you
prosecute patent applications before the EPO you need to be
able to understand this otherwise you are doing a bad service
to your client.

> Basically, what you just wrote is that a compression algorithm is technical
> if it is applied to an image and it is not technical if it is applied to
> text.

The image would be a representation of reality. For example
taking an X-ray picture or compressing video. Then you are
manipulating (representations of) light rays or electro-
magnetic signals. That's technical.

I should clarify that to make it clear that "text" means the
contents of the text. The decision in question was about making
text more readable/understandable by replacing difficult words
with easy ones. An algorithm to make ASCII characters from a
scanned image would IMO be statutory because it is technical.

> Sorry, no that is not what I meant.  I didn't really think that you are a
> pro-software-patent person.  You might be, but you never said that, so I
> certainly don't assume it.  You could just be playing devil's advocate, and
> it would be all the same for me :)

Ok. I am not sure whether I would be "pro-software-patent".
I think I'm somewhere in the middle, because I believe a
device with new behavior should be patentable even if the
behavior is caused by software - as long as the device is
technical and the new behavior is novel and nonobvious.
New nontechnical behavior is by definition obvious.

I believe that programs by themselves should not be statutory,
and the making & distributing of programs should not be an
infringement. But selling devices with the program loaded in
it should be an infringement. Otherwise it is impossible to
do innovation in fields like CE, because today almost everything
is realized with software. Rendering movies on a TV with
higher quality (100Hz, natural motion, etc) requires a lot
of investments, and such innovation should be encouraged.

> However, I hope you are against software patents, and that you help us to
> fight them, because they are harmful for our economy and personal freedom of
> expression.

I think I disagree with your definition of 'software patent'
because, as a computer scientist, I am unable to think of any
reasonable definition of 'software'. It is function that
matters. Implementation of the function is irrelevant.

Kind regards,

Arnoud Engelfriet

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/