[Patents] Press release about the BT patent on hyperlinks.

[PILCH Hartmut phm@a2e.de]

> >>if it is not a computer program as such, then that means I can not
> >>possibly infringe on the patent by merely distributing a computer
> >>program, right?
> 
> >In this case, because of the way the invention is claimed, it is unlikely
> >that merely distributing a computer program would be a direct
> >infringement.  However, if the computer program has the potential to
> >cause a technical effect when loaded onto a computer,
> 
> *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. 

But it is in contradiction with much of European legislation. At least the
German juridical definition of "technical" is "causing a foreseeable
result under application of natural forces without involvement of human
action".  It is usually argued that programs as such do not bring natural
forces to bear, at least as long as they only exercise the functions
that are already provided by the computer hardware.

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"

> >and, more
> >specifically, if the technical effect is the same as that claimed in the
> >patent,
> 
> So I cannot patent a computer program, but I can patent the 'technical
> effect' which a program might have when run?

Even if you assume that all programs have technical effects and therefore
"software as such" only means "software as long as long at it is not
functioning as software", it is still better for us if only the technical
effect is patented, because, as Mr. Probert showed, it allows the free
distribution of software to go on unhindered.  Only the usage of software
can, under this regime, be pursued as "contributory infringement".

Unfortunately, the patent lobby is by far not content with this stage.  
Already Mr. Betten (one of the leading lobbyists from the UNION and author
of many legal expert opinions on which EPO decisions are based) writes
that making software freely downloadable on the internet infringes on
European patents and must be banned, because it is a marketing tool which
is often used by big bullies like Microsoft (Internet Explorer) to kill
small innovative companies (like Netscape).

> In this particular case, the patent is not about 'technical effect' but
> about the very idea of hyperlinks.  Otherwise, it could not possibly
> apply to the Web because the technology used is very different from that
> current when the patent was filed.

Right.  But the lawcourts are prone to go very far in interpreting the
word "technical", and it is in fact quite easy to dilute its
meaning.  Diluting it is the path of smallest resistance for them.
They have no reason not to dilute it.

As a judge of the BGH (German highest court, responsible for many historic
diluting decisions) told me yesterday in private: in earlier times there
was pressure from the industry not to dilute the patent system.  But
nowadays so many crappy patents come out all the time that the industry
has given up filing oppositions, and the only pressure that the courts
feel these days is the pressure from the patent lawyer lobby.  In Germany
they call it "the Green Club" (der Gruene Verein) because of the green
cover of their flagship journal GRuR.  Even so-called scientific
institutions like the MPI (Max-Planck Institute) are parts of this lobby
and lack independence, because all the scholars in there are preparing for
a career within the same lobby, which has become a more and more
self-contained system, headed by powerful international associations like
AIPPI, UNION etc, which also call the shots at the Interior Market General
Directorate of the EU.  The judge told me that from people like Bernhard
Mueller and Eric Noteboom one can not expect anything but submissiveness
toward this lobby.

-phm