That anti-patent pamphlet I mentioned

Marcus Brinkmann Marcus.Brinkmann at
Sun Dec 15 13:46:35 UTC 2002

On Sun, Dec 15, 2002 at 02:00:05PM +0100, Arnoud Galactus Engelfriet wrote:
> 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 might be what they think, I couldn't tell, as I can't read minds.  But I
would be surprised if they would acknowledge this in public.  It's certainly
what they do, and it wouldn't be any bit better by redefining the term
"technical effect", as you seem to think is a solution.

> >  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.

This doesn't make sense any way I look at it.

I say that either the following two is true:

1. Every program has a technical effect if it is run on hardware.

2. Every technical effect is just a direct consequence of an abstract idea
   if it is applied to hardware.

If the first is true, then all programs are patentable, despite your claim
that a technical effect requirement would split programs in two classes.

If the latter is true, no program should be patentable because there is no
technical invention.

> > > 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.

When I say invention in this discussion, I usually mean invention as in this
definition, which means that it always includes an inventive step (is new,
technical, and industrially applicable).

> > > 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. 

Then indeed you are very much in line with the EPO, and clearly against the
written law.  Which explains the whole discussion.

> > 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.

This is way too vague to say if it is an invention or not.  But if there is
something new to be learned about the forces of nature in the valves, or the
mechanics of the sensor, I will pay fair and say, yeah, there is an
invention according to 52(1).  For the sake of argument anyway.

> 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?

The latter is clearly not an invention according to 52(1), if it is just a
plain chip and the sensor and valve etc are already known (for example,
because they are covered in different patents).  The chip logic (see, it is
chip _logic_) is abstract:  It is designed at the drawing board, there is no
experimentation involved.  In fact, it is downright irrelevant if the chip
controls fuel, coconuts, or bits and bytes.  In fact, I am sure that the
programmer which programs the chip hardly thinks about fuel, valves, sensors
and little wiggling pieces of steel and gas.  I am positively sure that the
chip designer thinks in terms of input and output data, in terms of math, in
terms of numbers and abstract, logical ideas.  He does not have to worry
about the forces of nature at all.

So, as long as there is no invention in the mechanical glue between the chip
and the sensor, or the chip and the valve, then there is no invention here
that deserves or needs the protection of a patent.  In fact, numerous
studies show that patents of this sort are harmful to our economy, to
personal freedom, and slow down the incremental development of the software

I know that it is current practice to allow such patents.  And I know that
1978, such patent claims have been denied.  The law is clear on the 1978

> > > > 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. 

Ok.  We will just have to accept that you believe that.  Again, I beg you to
reconsider, because your position is harmful to our economy.  We have enough
people without labour, thank you very much.  Or we could all become patent
attorneys instead, but then there is no one left to make inventions, of
course.  But OTOH, we don't need to worry anymore, as we will just patent

> > 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.

So a digital image of an x-ray is technical, but a digital image of an
elephant is what, animal?  And a digital image of a nun feeding a hungry
child is human?  And, sorry, but I can not resist, a digital image of the
excrements of a male cow is?

> 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.

You are makeing it clearer than I could that in consequence everything can
be considered technical and patentable.  This is exactly what the BGH 1978
foresaw and which was supposed to be prevented by making it required that
something new is learned about the forces of nature for something to be a
technical invention.

The EPA, and you, in your argumentation, is stretching and bending the term
technical until it becomes meaningless, to make everything patentable (you
might not want to make everything patentable, but as a consequence it will
be, if you want it or not: You can not just make a small part of the
abstract world patentable - if a small part is patentable, everything is).

So, you will have to make a decision: Do you want to make everything
patentable or not?  You might say that you don't want everything to be
patentable, but you can not say you only want to make things patentable that
have a "technical effect", because the technical effect will just be used as
an excuse to patent virtually everything.  This happens already, and you
realize that, too.  But you have not said how you want to stop the EPO from
granting patents on things you don't consider to have a technical effect,
but the EPO does.

> 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.

There is no middle.  You will have to take a position on either side,
if you want or not.  By supporting patents on programs "with a technical
effect", you are supporting the move to allow patents on all programs,
algorithms, all logic patents and patents on business methods.  You said
this is not what you want, but this is what will happen.  After the
"technical effect" idea, as weird as it is, is through, nobody will ask you
again about what you thought it might mean.

> > 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.

If you don't like software patent, say "logic patent".  It means the same
thing here.


`Rhubarb is no Egyptian god.' GNU    marcus at
Marcus Brinkmann              The Hurd
Marcus.Brinkmann at

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