From Bernard.Lang@inria.fr  Tue Oct 17 21:32:48 2000
Date: Tue, 17 Oct 2000 23:32:48 +0200
From: Bernard Lang Bernard.Lang@inria.fr
Subject: [Patents] Re: Technical effect

On Tue, Oct 17, 2000 at 12:00:33PM -0400, Gregory Aharonian wrote:
> Many of the arguments being made here and in Europe have their parallels
> earlier in time in the US.  The eventual general legal and scientific
> consensus was that these arbitrary distinctions between the embodiments
> of a new invention with regards to its patentability are indeed arbitrary.

We already agreed on that.  There is much more that should not be
patented than software... as long as it can be mechanically produced
(such as some circuits).

> Now all of you may hate such a consensus and logic from here in the US,
> but whatever Europe does in the short term, at some point there is 
> going to be a trans-Atlantic harmonization fight at the WTO, with the
> US insisting that the EC's rules with regards to these topics are too
> arbitrary and should be made to conform more towards the US style.

So what ... you will want your way... and why do you assume you'll get
it ?  Or do you intend to send the marines ?

> That is, if the EC itself doesn't scrap 52c and then require all of the
> national patent offices and courts (like those in the UK and Germany) 
> to comply.  And frankly, looking at the tactics being discussed here,
> and loser language like "evil", I am betting that the EC will drop 52c.

The word "evil" does apply, even by american standards ... though I
would rather used the word "perverted" (or "dvoy" in French).  The
EPO was given a treaty to protect.  Unlike US judges, they have no
right to change its interpretation and are supposed to conform to the
intent of those who drafted and signed the treaty.  In that they
failed, and actively seeked to reinterpret it without any mandate to
do so.  Now they seek to justify their actions by having the text
changed, and doing everything in their power to keep the legally
elected lawmakers out of the process...  Giving details would be too
long.
   They do not care whether it is socially/economically useful or not,
which is our criterion to asses what ought to be done.
It is a pure question of power.
   I fail to see what is wrong with the word "evil", except that the
concepts of good and evil have obviously become a rather quaint notion
in the world of IP professionnals.
  But, you may be right ... believing in morality rather than pure
power may be a loser perspective.

> Word processing (like homophone checking) is a form of information
> TECHNOLOGY.  It has been so described for decades.  The nature of
> technology changes over the decades.  Take encryption.  Encryption
> techniques were first protected by copyright (i.e. copyrighting the
> code books used for manual hand translation), then with mechanical
> patents (i.e. the technology of World War II devices), then with
> digital hardware patents, and now with software patents, and I 
> suspect at some point in the future with DNA patents.  The underlying
> algorithms have evolved mostly independent of their embodiments.
> 
> On the information processing side, take something as simple as 
> indenting in a word processor.  Decades ago electronic circuits were
> patented to allow electric typewriters to do automatic indenting,
> electronic circuits controling mechanical hardware.  Now there are
> software patents for indenting in word processors, improved versions
> of what was original done with electronics.  Assuming the improvements
> are novel and unobvious from all of the hardware and software prior
> art, it seems to me that an information technology/TECHNICAL problem
> has been solved and therefore should be eligible for patentability.
> 
> That's what the US courts have ultimately concluded, after first being
> more hostile towards software patents, using arguments that I think will
> prevail in Europe.  They basically are arguing that these distinctions
> are too ambiguous to use as a basis for prohibition in the law, so stop
> prohibiting them for that reason, and worry about novelty, obviousness
> and enablement.

I personally tend to agree with all of this, and even with the US
courts... except that the US courts forgot the US constitution: "To
promote Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries"

   They have so far failed to check whether software patents do
promote such progress. So has the EPO. And so have you.

As far as I am concerned, all that matters is greater social benefits,
in all dimensions of social life, whether economic or otherwise.  None
of the studies I know of, none of the past experience seem to justify
software patents.

   And the fact that the EPO is so eager to have a decision made
before any study in conducted is indicative of:
  - their total contempt for rational management
  - their total contempt for the democratic process
  - their awareness that they might be proved wrong in their actions

  I am waiting for the marines

Bernard

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