[Patents] Greg's myth

[PILCH Hartmut phm@a2e.de]

> I fully support the "doctrine of equivalence".  According to it, since
> it is obviously absurd (to me, at least), and contrary to European
> Treaties, to patent software, it is equally absurd and illegal to
> patent hardware that performs the same task.  Hence all such patents
> should be revoqued.

Actually the German juridical tradition already considers a kind of
"doctrine of equivalence".  It does not consider any innovation to be
technical, if the innovation is not in the "world of things" (Welt der
Dinge) but in the "world of concepts or subjective thinking" (Welt der
Vorstellungen oder Bewusstseinsinhalte).  Although this was not invented
by Karl Popper but by German lawyers, this view is quite the same as
Popper's "world 1" vs "world 3 or 2".

There are many cases where hardware innovations were rejected by the BPatG
and BGH as non-technical, because the innovative core belonged to the
world of logical concepts and did not teach a new way of using natural
forces.  For example a new concept of sorting material goods on a tray
according to a certain calculus would be rejected, but a new way of making
use of the viscosity of the tray during that process could be accepted.
In this case, only the latter part would be the "technical core", and
everything else would have to be deleted from the patent description or
left in there only for illustrative purposes and clearly marked as such.

Read Benkard's commentary to the German Patent Law (PatG), published in
Munich in 1988.  I'll soon write a recension.

> More to the point...  many arguments against software patenting do
> apply to harware mechanically generated from software with a silicium
> compiler.  But possibly not all.  On the other hand the economic of
> developping harware products is such that it may justify a form of
> protection not justified for software.  The issue is not some
> half-baked doctrine, with no economic or constitutional basis
> anywhere, but "to promote Progress of Science and useful Arts", and
> that may require varying policies.

Patent law has very fine traditions, which are currently being stepped on
by a hoard of barbarians rushing to get new customers for themselves.  
There is a negative selection, driven by greed, which pushes ignorants (of
either software or patent law or both) to the forefront and makes them
opinion leaders. It is really our role to protect the patent system from
these barbarians continue to refine its tradition and make it work in
those areas where it can work.

Making the examination system work better is one task, and Greg is doing
an unbelievably great job on it.  But this should not make anyone forget
the more basic task of improving the philosophy of the patent system and
refining the concepts necessary to delimit its statutory subject matter.

-phm