From epa98@doc.ic.ac.uk Mon, 26 Jun 2000 16:04:47 +0100 (BST)
Date: Mon, 26 Jun 2000 16:04:47 +0100 (BST)
From: Edward Avis epa98@doc.ic.ac.uk
Subject: [Patents] Press release about the BT patent on hyperlinks.

On Mon, 26 Jun 2000, PILCH Hartmut wrote:

>>*All* computer programs have the potential to cause a technical effect
>>when loaded onto a computer.  That is their purpose!
>
>Pssshh, Don't say that too loud!
>
>What Ed says here is exactly what the lobby of patent lawyers (e.g. the
>UNION) says. 

There is no harm in stating the truth, unless you start from the
assumption that anything with a technical effect should be
patentable.  What the patent lawyers forget is that the EU patent
system exists only for the economic benefit of the EU and its member
states.  It is not an end in itself.

In fact, I think that every patent office official and lawyer should be
made to write out one hundred times each day:

'The patent system is not an end in itself.'

What I am saying is that whether or not software has a technical effect
is irrelevant.  If it would be economically useful for governments to
grant patent monopolies on computer programs, they should do so.  If it
would be economically harmful, they should not.

It is clear however that software is different from physical inventions
and should be treated as different.  This difference is already accepted
in other areas of the law, for example computer programs get copyright
protection as a literary work, something which is not possible for a
physical object.

>European patent jurisdiction started crumbling, when people step by step 
>softened the notion of "technical".
>
>The first step was, at the beginning of the 90s, to claim that "software
>as such" means "software as long as it is not technical".
>
>This is already fallacious (see "Schiuma's evidence" given here earlier),
>but the fallacy rarely surfaces, as long as you stick to the strict
>definition of "technical".
>
>The second step is then to dilute the meaning of "technical" to such an
>extent that, as Ed Avis says, all software has a technical effect.
>
>If it is really accepted that "all software has a technical effect", then
>evidently the first step was not only fallacious but outright nonsense,
>because it could be rewritten as
>	
>  "software as such" means "software as long as it is not functioning
>   as software"

Exactly.  If you accept that all software has a technical effect, then
the EPO's judgements about 'software as such' meaning 'software without
any technical effect' is effectively saying that no computer program at
all is a computer program 'as such'.  This is clearly not the intended
meaning of the EPC.

-- 
Ed Avis
epa98@doc.ic.ac.uk





