From phm@a2e.de  Sun Oct 15 09:04:33 2000
Date: Sun, 15 Oct 2000 11:04:33 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] invention and discovery

> >>>Well, for me it is clear that Doppler could patent a radar or even
> copyright a program to calculate the Doppler shift.
> But not patenting such program!<<<
> 
> Maybe here we have some confusion about the scope of a patent.
> In the case of a radar equipment (based on Dopler theory) the applicant
> will not monopolize the Dopller theory, that will continue free
> to development of other equipments. The same occurs if this invention
> was implemented by software: the aplicant will receive a patent for
> such an aplication of this theory, as a radar system (implemented by
> software).

Doppler would receive a patent for a solution to a problem of industrial
application (also called technical problem) such as a radar, which is
based on the theory which he discovered.  This patent would entitle him to
keep others from solving the problem (such as using the radar), but not
from writing and publishing software that can be used for the radar.

> As Greg Aharonian said: "Both took equal amounts of brainpower to
> develop, and similar amounts of time and cost of equipment needed.  I
> see know reason why my inventiveness with the circuits should be
> rewardable with a patent, but not my inventiveness with the software"

Patents are not a kind of reward that an innovator is entitled to, but
they are a deal between the innovator and society.  The rest has been
answered in depth by John Tobey.  I earlier described this type of poor
reasoning which lies behind the patent expansion as "gorilla logic".  A
logic of legal and political analphabets who choose to remain at this low
level of human reasoning, because it allows them to make a fortune as
social parasites.  If you don't want your peer group to become governed by
evil, you should be very vigilant about this gorilla logic.

> But I agree with you, that in

Nobody said what you agree with, but it is an important point:

> some cases (not this one) this line is not very clear, as Seth Shulman
> said in his Owing the future: "unfortunetely, especially in a
> knowledge based economy, it is exceendingly difficult to distinguish

To be more precise:  "in an economy where immaterial goods are
merchandized and anything useful can be patented, as in the US".

> beteween the two types of claim...an improved mousetrap and a monopoly
> on the idea of trapping mice" (page 7)

Right:  an invention consists of three parts:

	1 real world problem (involving physical objects)
	2 model of real world (knowledge of natural forces)
	3 algorithm	 

The novel part in a true invention must lie in 2.

Part 3 can be found automatically by artificial intelligence / artificial
life.

Part 1 can be difficult to find and formulate correctly.  But monopolising
part 1 boils down to monopolising "the idea of trapping mice".

Software patents like the IBM patent on "a way of finding faulty strings
in a text" usually come very close to claiming a problem.  Software is
about abstraction, and this eventually means abstracting from the solution
to the problem.

By granting monopolies on problems, the patent system is returning to
mercantilist times.  This is in line with some other tendencies of the
"New Economy", which people have described as "mediatic feudalism". 

There is a general problem about combining capitalism and a public good
such as information.  Some proponents of extended patentability are driven
by a utopian wish to solve this problem.  Like other utopias, the
proprietarist utopia promises heaven and creates hell.  It only aggravates
the problem it is supposed to solve.
 
> the patent US 5297206 is a good example: a patent claim over two large
> prime numbers, that can be used in an encryption eletronic e-mail
> program. What is the line between a encryption program and a
> mathematical method? I think that there is no difference, so I think
> that such kind of invention is not subject matter.

That's a very nice example.
Perhaps we file opposition on grounds of non-technicity in a few such
borderline cases, where even EPO examiners see that the border to 
non-technical pure reason is being crossed and problems are being created.
In reality this border has been crossed with the moment where you no
longer demand that your solution be based on new knowledge about natural
forces.
This is why the EPO caselaw is currently so unsystematic and even
its base concepts such as "additional technical effect" are undefined and
have to rely on a contradictory set of cases, see

	http://swpat.ffii.org/stidi/korcu/

(German only so far) for a brief account and more links.

-phm






