That anti-patent pamphlet I mentioned

Marcus Brinkmann Marcus.Brinkmann at
Mon Dec 16 17:55:09 UTC 2002

On Mon, Dec 16, 2002 at 05:56:09PM +0100, Arnoud Galactus Engelfriet wrote:
> 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?

You are always allowed to sue someone, for whatever reason you can possibly
think of.

But I don't think you should win the case :)

BTW, it can not "do the same thing".  It might do something that has the
same final result according to some evaluation of the things that happen. 
But it is certainly an entirely different process.  (The software is
deterministic, while the hardware is using the forces of nature in a
controlled way).
> > > 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.

Exactly.  This is why the Directive must be rejected.  It is shifting the
responsibility for the bad current practice of the EPO to the politicians,
who should not fall into this trap.
> > 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?

The device might be patentable.  Data input and software not.

> > > 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.

"Almost all teachings about forces of nature are known"?  I heard this
before.  Right, this was said by the teacher of Max Planck.  The teacher
recommended to Planck to NOT study physics, because "almost everything is
already known".  This is simply wrong.  Just as your predicition of the
results in practice.  All economic studies showed that allowing software
patents is harmful to our economy.

My position is quite easy to apply in practice.  Patent offices have done so
since they were created (they extended their position to also grant patents
on other things, but that doesn't mean that they forgot how to do it

> >  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?

Hardware people build hardware.  If they build in hardware what is better
done in software, they should build something else.

Usually you build hardware because software can't do the job.  For example,
try to close a bottle with software.  You can't, you need a small metal
plate and form it around the bottle opening.

Patents are not there to protect you against other people finding different
solutions to the problem you solved.  Patents are there to protect you from
someone using the same solution as you found, so you can publish your
solution instead keeping it a secret.  Sorry, but patents don't give you a
monopoly on solving a problem, just on solving it in one special way.

I am distressed that you seem to suggest people should get monopolies on
solving a problem.  That would be very, very harmful to our society.  In
fact, it would block innovation radically.

> > > 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
> data. 

It's not processing data at all.  It is using the forces of natures
(magnetic fields) in a controlled manner to solve a problem.
That data is encoded in the light beams is completely orthogonal to that. 
You could get a patent to move an EM beam in a controlled way just like a
TV does irregardless of whether there is data encoded in the beam or not.

> 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
> patentable.

Ok.  But I think that a teletext extractor is not patentable just because it
processes EM beams which have different data encoded.  It needs to be new
and inventive in its own right (ie, use some new way to controll EM beams)
to be 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.

There are examples where organizing lenses/holes in a specific geometric
pattern related to prime numbers produces an image that can be computationally
converted to the original image (which is of higher quality as the one
lense/hole case).  This is an advanced version of the pinhole camera, if I
recall correctly.

Still, the pattern is caclulated mathematically, there is nothing new we can
learn about the forces of nature here, if the way the light beam is
reflected and scattered is well known.  Then you can draft and design that
pattern in front of the computer in your lab, without ever seeing the light of
day (pun intended ;)

If you find a new material that scatters light in a new way, you can surely
patent the process to create or form that material.


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

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