That anti-patent pamphlet I mentioned

Marcus Brinkmann Marcus.Brinkmann at
Sun Dec 15 15:38:43 UTC 2002

On Sun, Dec 15, 2002 at 03:34:30PM +0100, Arnoud Galactus Engelfriet wrote:
> 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.

Now, come on.  It's a pretty weak argument, even as a defense, and much
weaker to actively support a position.  First, many terms are quite clear. 
"Killing" for example is pretty easy to understand.  "Stealing" too.
So is the term "technical invention", based on the concept of "forces of
nature" which you consider to be so antiquated and old-fashioned.

The forces-of-nature concept was introduced into patent law to restrict
patents to technical inventions, rather than new abstract and logical ideas.
The reason you have a problem with this definition is that you (as the EPO)
want to patent something non-technical.  The EPO had the problem that the
law restricted patents to technical inventions.  The clever trick they use
is the hyperartificial construct of the "technical effect" to justify
(poorly) their actions.

I don't know why you also use the "technical effect" to defend your
position, as you could just argue for non-technical patents because you are
not bound to law in your position.  Maybe it is easier for you to pick up
the newspeak by the EPO rather than actually use the language that everybody
understands.  Maybe you don't really realize that the newspeak by the EPO is
hollow and circular.

Anyway, the world is not helped with constructions like "technical effect",
which have an overly broad meaning, ie "anything that is related to
something technical", like your images from x-rays. 

> 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. 

EPO newspeak.  Now we not only have the imprecise term "Technical effect",
we have the even more imprecise term "further technical effect". So what is
the "further technical effect" in saving memory or bandwidth?  As far as I can
see, a new algorithm that consumes only half the memory does only have the
normal interaction between hardware and software (it's completely normal for
that new algorithm to consume half that memory).

Please start to make sense.  Speak in a language I can understand.  If you
want to use terms like "technical effect", I assume you are just picking up
the apologetic EPO vocabulary unless you give an acceptable definition for
them.  It must be possible, because if it is not, these terms are not useful
to be used in law (you can use them in a novel, or in a speach in front of
patent attorneys, but for law they have to be avoided).

> > 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).

The current practice of 30000 harmful logic patents proofs you wrong.


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

More information about the Discussion mailing list