From phm@a2e.de  Wed Oct 11 23:37:32 2000
Date: Thu, 12 Oct 2000 01:37:32 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] software as such

> EPO's frustration and the US courts's frustration in trying to come up
> with language to fix old-wrong concepts about algorithms, will end up

As I explained, the EPO destroyed well functioning concepts.

> being dealt with by the EC/EPO the same way the US courts have dealt
> with it - to just get rid of the prohibitive language about ill-defined
> terms such as methods, apparatuses, algorithms, software.

There has been a lot of ill-defined reasoning.  But also some
exceptionally lucid judgements which were taken as authorities in all the
law commentaries, so the EPO people could have cared to study and apply
or, wher necessary, further refine them. 

But instead, they preferred to go the path of ignorance, fuelled by greed,
fear and proprietarism.

> Heck, just reading these latest discussions on this list would be enough
> of a reason for the EC/EPO to get rid of the 52a to avoid the headaches
> that their discussions will cause if they try to play philosophy with
> the law.

They will get even more headaches if they continue to refuse providing
clear definitions.  

The BGH did provide exceptionally clear definitions in 1976-81, which went
into the guidelines and commentaries such as Benkard and are still widely
understood.

The EPO muddled the borderlines of patentability and created a chaos of
undefined terms designed to twist the law.

Even now they do not have any usable definition of technicity, by which
they could e.g. explain why a novel definition of "technicity" can't be
patented.  You also lack such a definition.  Or do you think a definition
of "technicity" should be patentable?  It is certainly useful, and I even
could use it very "technically", e.g. in a language parsing program that
tries to sort out which patent claim sets are "technical". 

Enough of a headache?

You deserve it for advocating negligency on definitions of statutory
subject matter.

For any system of law, it is irresponsible to muddle the rules.  For law,
clarity is even more important than economic effects.  A clear bad law is
often better than an unclear good one. Also, clear criteria are needed
before economic effects can be seriously evaluated.

The European physical vs logical border repeatedly described here is one
of the very few possible clear borders.  Much clearer than fuzzy concepts
like "novelty" or "non-obviousness".


-phm





