That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 14:34:30 UTC 2002

Marcus Brinkmann wrote:
> On Sun, Dec 15, 2002 at 12:46:43PM +0100, Arnoud Galactus Engelfriet wrote:
> > 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.
> The problem is that the patentability of all pure mental tewchniques is a
> direct consequence of allowing any software patents, because it is not
> possible to draw the distinction you want to draw.  The term "Technical
> effect" is without real meaning.

It is impossible to give a clear definition of "technical",
that is true. But it is also impossible to give a clear
definition of many other legal terms, like "reasonable doubt",
and most constitutional rights.

> > 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.
> You are repeating that you only want software with a "technical effect"
> should be patentable, but you keep ignoring that the term "technical effect"
> is just pure bullshit, to put it bluntly.  There is no software without a
> "technical effect".  So the consequence would be that all software is
> patentable.

We should ignore the normal interaction between hardware and
software when determining the technical effect. If the only
technical effects you can identify are "there are now
electrical currents running" or "the computer does something new",
that's not enough. 

> And you said it yourself.  You said you believe that every patent attorney
> can introduce a technical effect into a claim.

Every *competent* patent attorney :) But yes, this is almost
always possible. But I also think most of such claims will be
of very little value (very limited because of lots of limitations
to establish the technical effect) and they will almost always
be obvious (because the technical effect obtained is very simple
and not surprising).

> > 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.
> I am not familiar with japanese law.  I can not even read japanese, so I
> have no way at all to tell what their law says.

> However, I have heard that
> no law actually allows software or logic patents, and that it is just the
> respective patent offices making up the practice.  

I can find nothing in Japanese patent law that explicitly
forbids patents on computer programs, as such or otherwise.
There is nothing on "logic" either, although there is the
explicit requirement for "the highly advanced creation of technical
ideas by which a law of nature is utilized".

Kind regards,

Arnoud Engelfriet

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

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