[Patents] Proposal for Revision of EPC 52

[PILCH Hartmut phm@a2e.de]

                  Proposal for Revision of EPC =A752
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     The limits of the patent system as defined in the European Patent
     Convention have over the years become blurred. The patent offices
   exploited every perceived loophole in the letter of the Article 52 in
     order to expand the scope of patentability. Here is a proposal for
   revision that would achieve a clear delimitation while preserving the
                      original spirit of the article.
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     * Basic Ideas
     * Our proposal for reform of =A752
     * Current Version of =A752
     * Rules of Transition
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Basic Ideas

   The delimitation can be better understood by recourse to Karl Popper's
   Three-Worlds-Theory
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    1. World 1 is the material (tangible) world. When I hand over a
       tangible object to you, I can no longer freely dispose of it.
       Tangible objects change owners upon handover. We can reduce the
       costs for reproducing tangible objects by producing them serially,
       i.e. by means of industrial mass production.
    2. World 2 is the subjective world, i.e. the world of human working
       capability, including human thinking and acting. When I work for
       an employer, I can no longer freely dispose of my work capability.
       Human work changes owners upon handover. We can reduce the
       reproduction costs for human services by cultivating human talent.
    3. World 3 is the world of information. When I transfer a text file
       to you, I still posess the file. Informational objects don't
       change owners upon handover. We can the reproduction costs to a
       limit value of zero, because informational objects are independent
       of their carriers aswell as of time, space, matter and human work.
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   Patent rights are temporarily and spatially limited prerogatives to
   the application of informational fruits (world 3) of human work (world
   2) to the end of producing tangible goods (world 1).
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   Patent rights are granted in order to stimulate the development of
   technology and promote the publication of technical knowhow. During
   the last years however there has been a patent inflation, which
   stifles technological development and promotes secrecy. It is time to
   specify unambiguous criteria for the patentability of inventions, so
   that the European Patent Office may no longer have any excuse to scorn
   its own law.
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Our proposal for reform of =A752

Article 52 - Patentable Inventions

    1. European Patents are granted for industrial inventions, i.e. new
       problem solutions, which are difficult to find and are applied in
       the mass production of tangible goods.[1]
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   Items of the following categories do not in themselves constitute
   industrial inventions, but may form parts of industrial inventions:
    1. information of all kinds, including data and programs stored on
       storage media of any kind.[2]
    2. the use of aesthetic forms for any purpose[3]
    3. human thinking and social interaction, including the playing of
       games, the organisation of companies, the rendering of services,
       the medical treatment of people and animals.[4]
    4. living beings and parts thereof[5]
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Current Version of =A752

Article 52 - Patentable Inventions

    1. European patents shall be granted for any inventions which are
       susceptible of industrial application, which are new and which
       involve an inventive step.
    2. The following in particular shall not be regarded as inventions
       within the meaning of paragraph 1:
         1. discoveries, scientific theories and mathematical methods;
         2. aesthetic creations;
         3. schemes, rules and methods for performing mental acts,
            playing games or doing business, and programs for computers;
         4. presentations of information.
    3. The provisions of paragraph 2 shall exclude patentability of the
       subject-matter or activities referred to in that provision only to
       the extent to which a European patent application or European
       patent relates to such subject-matter or activities as such.
    4. Methods for treatment of the human or animal body by surgery or
       therapy and diagnostic methods practised on the human or animal
       body shall not be regarded as inventions which are susceptible of
       industrial application within the meaning of paragraph 1. This
       provision shall not apply to products, in particular substances or
       compositions, for use in any of these methods.
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Rules of Transition

   The new version of article 52 should affect only those patents which
   are granted after its enaction.
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Notes

   [1] A patentable invention must fulfill the following criteria
    1. Novelty
    2. inventivity (Patents should recompense inventors for a significant
       effort, usually several manyears of research work. A single
       "inventive step" should not be deemed enough. Criteria and methods
       for assessing the inventiveness should be worked out separately.)
    3. Technicality (the invention should solve a problem. Its value
       consists in usefulness, not in beauty. Remark: The patent offices
       have recently pushed the notion of "technicality" to the
       foreground and claimed that this is the underlying notion of =A752.
       This does not hold. Narration techniques, composition techniques,
       negotiating techniques, programming techniques etc are all
       technical. It is their lack of industrial application that usually
       puts them outside the scope of =A752.)
    4. industriall application (The invention must be industrially
       applicable, i.e. involve an industrial application, i.e. mass
       production of material goods. Patents give their owner the right
       to prevent others from applying his ideas to the mass production
       of material goods, nothing else.)
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   [2] world 3. This area is subject to copyright as well as to civil
   liberties such as freedom of expression. However an industrial
   application of an informational technique can be patented.
   [3] These are not problem solutions. This area is subject to
   industrial design certificate law.
   [4] World 2; subject to civil liberties.
   [5] living beings do not need to be industrially produced. Not seeds
   but only technologies for industrial applications involving seeds are
   to be patentable.
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    http://swpat.ffii.org/stidi/epue52en.html
    1999-12-14 PILCH Hartmut
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