From phm@a2e.de  Wed Nov 22 16:20:10 2000
Date: Wed, 22 Nov 2000 17:20:10 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] Re: Diplomatic Conference

> I understand "technical" to come from the Greek "techne", the useful arts, 
> which word in turn is derived from "tekton" or carpenter. So it implies 
> something to do with the practical world. There is a minority view (which I 
> share) that "technical" is actually defined in the EPC in Articles 52 and 
> 57, which say that an invention must be "capable of industrial application", 
> ie made or used in any kind of industry. Do I recall talk of the "software 
> industry"? Hartmut might like to tell us all what the literal meaning of the 
> German "gewerblich anwendbar" is.

It is a short form for "fuer die gewerbliche Guetererzeugung anwendbar"
which again is a language-purist way to say "industriell anwendbar".  In
other words, "gewerblich anwendbar" is a German way to say "industrially
applicable", which became common around 1877, when patent law was adapted
in Germany.  The official document of the parliament stated clearly what
it meant:  an exclusion of agriculture, mining and anything that did not
relate to the direct production of material goods, i.e. new physical
objects not found in nature or in the mental/informational realm.

The Japanese and Chinese adopted much of their patent systems from
Germany, and they expressed "industrial application" even directly as "use
in the area of the producing industries" which is very short when written
in Japanese but long (and therefore no longer usual) when written in
German.

Moreover, in German tax law, "gewerblich" means something like "related to
merchandisable goods".  Services are not "gewerblich".  Thus even the
abridged expression "gewerbliche Anwendung" when wrongly taken for its
face value of today would put in doubt whether computer programs can be
subject to patentability.  Computer programs can of course be turned into
something merchandisable goods, but what you really sell here is not a
tangible good and not even a piece of information but only a only a
copyright license.  Pieces of information are not limited to an owner.
Merchandising them always means reducing their functionality, crippling
them.  To talk about a "software product" or a "software industry" or
"software engineering" therefore only a confusing metaphor not suitable
for forming a basis of any sound legal theory.  This, again, can also be
found in Gert Kolle's wonderful 1977 paper on the Dispositionsprogramm
decision

	http://swpat.ffii.org/vreji/papri/grur-kolle77de.html

Read also

	http://www.gnu.org/philosophy/why-free.html

on why merchandising a program means crippling that program.

-phm







