[Patents] software as such

[PILCH Hartmut phm@a2e.de]

> I don't understand why Hartmut Pilch objects to "technical" as not 
> occurring 

I don't object to constructing a theory of technicity from the EPC.  But
it must be a consistent theory, in line with the exception list in Art
52.2.

> in the EPC (it does, in Rules 27 and 29) but then smuggles in "natural 
> forces" as a criterion for patentability. It's not in the EPC. 

"Natural forces" are part of the only theory that provides a consistent
interpretation to Art 52, and they are a part of the tradition of both
German patent law and EPO practise.  They even occur in the EPO guidelines
and still underly the current muddled "technical character" concept of the
EPO.  The problem is that the EPO no longer requires the inventive part to
be technical but is satisfied if the problem and solution as a whole are
technical.

> Indeed, the only place it occurs is in the German jurisprudence. 

Wrong, as stated above.
Why do you try this on me?
You know the law, and probably better than I do.

> The same with technical advance, which was in the old German law.
> Could we please avoid confusing matters by referring to obsolete
> national commentaries and law. (Anything on patent law published
> before 1985 is almost certainly obsolete, and any commentaries dealing
> with software patents, whenever published, are also obsolete because
> the field is so fast-moving.)

Wrong.
The law has not moved since 1973, and its basic rules are just as
applicable now as they were back then.
Only the EPO has been fast-moving, and that is precisely what I am
complaining about.
 
> It's also worth pointing out that it is incorrect to say that the EPO
> accepts any computer running a program as "technical". The "data
> carrier"  decisions, T 939/97 and T1173/97 explicitly state that there
> must be a "further technical effect" to distinguish from the normal
> interaction of a computer and a program.

And the other paper I quoted states that this is an empty wording needed
to formally accomodate the EPC:

        http://www.european-patent-office.org/tws/appendix6.pdf

Which in fact it is.  The EPO has not come up with a definition for
"further technical effect".  See also the criticism of the EPO concept
mess in

        http://swpat.ffii.org/vreji/papri/drtw.pdf
 
> So far, I haven't seen a satisfactory answer to Antonio Abrantes question. 

Then please quote and criticize those answers that you found
unsatisfactory!

> For someone who likes to quote Popper I thought Hartmut Pilch's answer was 
> suspiciously close to naive realism and his argument that circuits, being 
> in 
> the word of logic, should be unpatentable, is, as we say in German, 
> realitaetsfremd. 

I didn't say that circuits are always in the world of logic.
Circuits can sometimes be used to implement solutions that are based on
new empirical knowledge.

> Another simple example: if I made a superhet receiver out of valves or
> transistors and was the first to do so, should I be limited to my
> embodiment, valves or transistors?

It depends on whether your invention was built on new empirical knowledge.
If it can be implemented in so many independent ways, it may have been a
mere calculation based on known models.

> What if I made it with valves and then someone came along and did the
> same with transistors - would that not be copying?

Depends.  Usually it would be your responsibility to make the claims broad
enough.  Of course analogy argumentation can also be used at the EPO when
they are not broad enough.

> What if someone used an A/D converter, fed the signal to a PC and and
> carried out the conversions digitally - would that not STILL be
> copying?  Do we rule out circuits by definition because they don't fit
> in the theory?

It is not a question of circuit vs computer program but of real-world
invention vs innovation in the sphere of pure reason.
 
> As for the problems patents cause SMEs: yes, they do but hey, to quote
> Morphius, welcome to the real world.

To the brave new world that a few cynics at the EPO are creating.

> Once upon a time there was an Evil Empire that didn't believe in
> patents either and along came a small outfit called Stac Electronics
> and screwed them for many millions. After that the BoyGod had a
> revelation. So now we see them trying to patent stuff, but they're way
> way back in the software league.

They are in front of the software league, as was correctly quoted by
the GreenPaper.

If companies like IBM, Sun, Toshiba, Sony etc still have more swpats than
Microsoft, then that is because they have been in the hardware patenting
business for a long time.
 
> Finally, there's a rumor circulating that the EPO has refused a
> business method as not being technical. If true, it rather puts paid
> to the more extreme antinomian views attributed to the EPO.

Since the EPO has destroyed all clear rules on statutory subject matter
that existed and replaced them with muddled concepts, it is only normal
that they now have to base their decision behavior on considerations of
political opportunism:  whatever might be straightforward enough to create
political scandals can be rejected by the EPO.  Amazon is certainly in
danger of not getting its patent in Europe because of political
considerations, although the patent perfectly meets the "technical
character" criteria of the EPO, as far as they can be construed from the  
tons of Internet business method patents that the EPO has already granted.

-phm