That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Mon Dec 16 16:56:09 UTC 2002

Marcus Brinkmann wrote:
> On Sun, Dec 15, 2002 at 03:57:18PM +0100, Arnoud Galactus Engelfriet wrote:
> > 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.
> I have no problem with people patenting hardware that does a similar job to
> some program.  I have a problem with people patenting software, irregardless
> of what it does.

Ok. And now I have this patent on a hardware implementation,
and you make a device that does the same thing, by using a
general purpose processor and a ROM with software. The software
makes the device do the same thing as claimed in my patent.
Should I be allowed to sue you when you sell the device?

> > Ok. So if I have something that is an obvious modification of
> > an existing device, you would say it is not an invention. Right?
> I might say it is an invention, but not an invention in the sense of Art
> 52(1).

Ok. I say it is an invention in the sense of Article 52(1), but
one which lacks an inventive step.

> > 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 realized that you use the term invention in the general sense, and not in
> the specific sense of the patent law.  Otherwise a sentence like "an
> invention must have an inventive step" doesn't make much sense at all (it
> would be completely redundant).  

To me it's not redundant. An invention can be obvious, making
it lack an inventive step. An invention can be known. An
invention may be incapable of industrial application. And
there are things that are novel, nonobvious and capable of
industrial application yet are not inventions. There are four
requirements before you get a European patent.

Maybe I should start saying "statutory subject matter" instead
of "invention".

> I don't think any fundamental disagreement
> between you and me in this thread is explainable by that difference of word
> usage.

Except in that you say "this is not inventive hence it is
no invention". To me that doesn't follow. If I file an
application today for the lightbulb, the claim will be
rejected for novelty, but not for "not being an invention".

> > 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.
> There is not much room for interpretation.  If the EPO wouldn't be painfully
> aware of the fact that its current practice is against the current law, it
> would not pressure so much for having the law changed to adapt to current
> practice.

But the Directive aims to harmonize Member State law with
the EPO's current interpretation, not to modify the EPC.

> Forces of nature are not directly manipulated in software.  Never.  This is
> downright impossible, as software is not something that exists as a motor
> exists.  In its purest form it only exists in the world of ideas, and in the
> real world in only exists as a representation (as a program text, or as bits
> and bytes on a volatile or permanent memory).  There is always a technical device
> that receives electrical input (like a motor), that does the mainpulation.

Ok, and then of course I will come with the technical device
that does the manipulation using software. The invention^W
statutory subject matter now is device+input+software, not
just the software. Is this patentable if nonobvious?

> > 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 problem is that you argue in terms that are completely arbitrary and can
> be bended at will.

Whereas I think your position is very hard to apply in
practice, and you seem to put all requirements together.
Furthermore, it seems to lead to very undesirable results
in practice, since almost nothing is patentable under your
rules. Almost all teachings about forces of nature are known,
so there is rarely anything new to learn anymore.

>  It is clear to me that it is always hard to
> counter-argue such situations with ration and well definedness, simply
> because there is no way to counter a contradiction except by two things:
> 1. I can show that you can follow everything from a contradiction (ie,
>    everything is patentable in your interpretation)
> 2. I can offer a different interpretation that really is fair and consistent
>    in that it offers a real limitation to the patent system, and I can show
>    that this interpretation is much better suited for our economic world.

Could you please show that it is better suited? I'll grant you
that it may be better for the pure software world, but what
will it do for the hardware people?

> > They're technical data if it can be shown the machine operates
> > in a technically different way based on it.
> This is potentially true for every data.  Is this really what you want?

If a machine can operate differently when it's shown a
different picture, then the differently operating machine
should be statutory subject matter. 

> > A digital photo camera is an invention, is it not? 
> It can be an invention.  The pictures it takes can not.

Correct. That's what I am trying to say. The camera becomes
statutory because it processes physical data (light rays).
Unfortunately I now realize that I am confusing the terms
"technical data" and "physical data". :(

> > 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.
> You avoid the question:  Can data be technical?  Above you say yes.  

What I originally said is that processing physical data is technical.
So a method of processing EM signals to make a visual picture (in a TV)
is technical and hence statutory, because it is processing physical

A TV by itself is technical and hence statutory as well, because
it is arranged for processing physical data.

This does not make the EM signals themselves patentable.

A device can be built to operate differently on different
physical signals. For example, it might be able to extract
Teletext data (closed captioning data) from a TV signal.
That makes the device novel with respect to the above TV,
because that TV cannot extract this data.

This still does not make the TV signal with Teletext lines

Sorry for the confusion. It's a bit difficult, because here I
differ somewhat from current EPO practice. 

> You
> even offer a definition that makes all data technical, and thus patentable.
> A direct consequence of what you say is that a picture of an elephant is
> patentable.  A picture that exhibits a "further technical effect" on a
> machine would be patentable.

In a security system, recognition of an elephant approaching the gate
might be the trigger for a different alarm than when a human
approaches. In such a system, the fact that you've recognized an
elephant is a technical feature, yes.

This does not make the picture by itself patentable.

An interesting question: suppose I have an umbrella with a certain
pattern on it. This pattern looks purely aesthetic, so there
is nothing inventive. But if I can show that the pattern actually
provides optimal light distribution to the person carrying the
umbrella, so you get a nice tan even when it rains? Then arguably
I'm even manipulating forces of nature by the way my umbrella's
pattern redistributes light rays.

Kind regards,

Arnoud Engelfriet

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

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