That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Sun Dec 15 14:57:18 UTC 2002

Marcus Brinkmann wrote:
> 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.  

Neither can I, but I can read BoA decisions, and that's what
they say in there. T 1173/97 explicitly decides programs on
a carrier are statutory if they can be shown to exhibit a further
technical effect. And this is also what the Guidelines say.

> I say that either the following two is true:
> 1. Every program has a technical effect if it is run on hardware.

This is true. That's why the EPO came up with the "further
technical effect". Maybe we should define "technical effect"
as "the effect you'd get if you built the software in
equivalent hardware instead". Then it does not matter anymore
how the invention is realized, and you simply look what it
does and what that achieves.

> > 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).

Ok. So if I have something that is an obvious modification of
an existing device, you would say it is not an invention. Right?

This may be the cause of a lot of confusion, because in my
opinion it is an invention, although an obvious one. That's
how I read the EPC: "patents shall be granted for inventions
which ... involve an inventive step". This admits there are
inventions which do not involve an inventive step.

> > 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.

I disagree with your interpretation of the EPC, and I
disagree with your observation that my interpretation is
"clearly" wrong. It's a different interpretation, and one
which leads to results you don't like, but that does not 
automatically make me "clearly" wrong.

> > 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.

Ok, so you combine the evaluation of inventive step and
the determination whether it is an invention. Is it possible
that the mechanics of sensor and valve do teach us something new
about forces of nature, but their application in a fuel
injection system is obvious?

> 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.  

Your approach is clear, although I find it interesting to see
that apparently it does not matter what forces are manipulated
or what this manipulation achieves. If the manipulation occurs
in software, it's not an invention, if it occurs in hardware it
is an invention.

> 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
> side.

It is current practice to allow such patents. Back in 1978, such
claims would have been denied. But today we have a much more fair
and consistent interpretation of the law.

Should we keep on repeating our assertions of how the law is
supposed to be interpreted? I don't think either of us has any
arguments the other is prepared to accept, because we're coming
from totally different starting points.

> > 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? 

They're technical data if it can be shown the machine operates
in a technically different way based on it. A digital photo
camera is an invention, is it not? 

> 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?

They're all data. In a face recognition system, the data would
be processed to make the system e.g. grant access or something,
and then the system operates influenced by the data. That would
make system+data technical.

> 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.

How can I possibly do that? In fact, how would you want to stop the
EPO from granting patents on things you think do not involve novel
application of forces of nature, but they do? The Japanese patent
office apparently can find reasoning that computer programs are
technical ideas by which a law of nature is utilized. If the Japanese
Supreme Court affirms that, what can you do?

> > 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.

Fine. I'll use "computer-implemented invention" to refer to
things that use software, and "logic patent" for things that
involve no (further) technical effect.


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

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