[Patents] software as such

[PILCH Hartmut phm@a2e.de]

> Doppler modelled the real world with your theory. It is a typical
> definition definition of a discovery, not a invention. It would be
> transformed in a invention, with he=B4d crete some device operated
> according such theory, such a radar system, for instance. Your theory
> could not be patented (makes no difference if he implemented in
> software, because it would be only another language to write his
> theory). But if he would write a software program, that solved a
> technical problem, this software (as the radar system cited)  could be
> patentable. It makes no difference if the invention is implemented in
> software or no, the question is if such invention solves a technical
> problem and gives a result that has some effect in our real world, and
> not a virtual one.

Doppler would get the patent for the "technical solution to a technical
problem". The device using a computer program might be one way to
implement his solution.  But he'd not get a patent on the program itself.
In other words not on the program as such.  It would be a patent on a
process, and if someone published a usable program on the Internet that
would be considered just the same as if someone published useful
documentation on the Internet.

Doppler would get the patent, because his solution was based on new
empirical knowledge, not because he found a novel way of integral calculus
(which he incidentally didn't). Nevertheless, calculating is part of the
solution.  As always.  Any invention is a combination of new empirical
knowledge with a set of instructions (algorithm).  And today any such set
of instructions could be implemented as a computer program, if logics and
physics is clearly separated in the solution approach. But the set of
instructions alone would not be considered an invention.

Calling the Doppler invention a "program with a technical effect" would be
misleading.  Saying "technical process potentially controlled by a program
" would be more appropriate.  And, since all technical processes can
potentially be controlled by a program, any mention of a program in the
description title or in the claims is inappropriate here.  It would
however be quite appropriate to describe as an implementation example a
program-controlled variant.

It is not the program but a real-world process that is considered
inventive.  A program is only one of many ways of describing the process
in a particular programming language.  A "description with a technical
effect" (e.g. patent description with program listing in the
implementation examples section) isn't patentable at the EPO, is it?

By introducing a confusing concept like "program with a technical effect",
the EPO really made a program as such patentable, as was recently pointed
out by the BPatG, who explicitely rejected this logic.  But the EPO went
even further.  The next step was then to claim that all programs have a
technical effect.  This happened at a few conferences of AIPPI, UNION and
others, hosted by the EPO.  The lawyers assembled there complained that
they did not understand the difference between "program with a technical
effect" and "program as such", because all programs have a technical
effect when executed on a computer.  Which is of course true. =20

But the EPO didn't take this as an opportunity to correct its error.
Rather, it added further errors on top of it.  It declared that since
"practically all programs" have a technical effect, claims to "computer
program products" and a "computer programs" are admissible. Recently, the
EPO published a document which said that the "additional technical effect"
requirement is still upheld only as an empty wording construction needed
to formally accommodate the EPC until Art 52 is changed.

=09http://www.epo.co.at/tws/appendix6.pdf

Thus it has become more than clear that a "programm with an [additional]
technical effect" in the terminology of the EPO is nothing but a "program
as such", as was clearly analysed recently by the German Federal Patent
Court (BPatG)

=09http://swpat.ffii.org/vreji/papri/bpatg17w6998de.html

Regards

-phm