[Patents] Re: your mail

[PILCH Hartmut phm@a2e.de]

> >I don't doubt that many of them are competent, but there must be a
> >significant number who are not.  How else can you explain the patents
> >exhibited in the swpat horror gallery?
> >
> >I defy you to pick one of these patents and say with a straight face
> >that the examiner who granted it was competent at his job.
> 
> The problem is always the prior art. Patent examiners are good at examining 
> mechanical widgets not because they find them easier than software but 
> because patent offices have been examining widgets for generations and know 
> how to classify them.

> Right now, despite protestations to the contrary, the EPO just isn't very 
> good at searching software patents 

So you do concede the point that Ed Avis was making:  examiners are at
present not competent to do their job in software.
The ensuing apologetics is not of interest in this context:

> because it hasn't worked out a satisfactory classification for search
> purposes. I remember years ago in the UK Patent Office seeing how the
> group dealing with systems (group 40 if I remember rightly) would
> redraw inventions in flow chart form to try and get some kind of
> system into the searching. They failed.
> 
> It will take a generation or two to sort out this problem. In the meantime, 
> tough luck and remember the opposition and third-party intervention 
> procedures which almost all countries (the US, of course, excepted) provide.

"It will take a generation or two to make the transition from socialism to
communism."

If you claim you can create the New Man, please do the experiment among
yourselves and stop conscripting programmers as experimenting rabbits.
 
> The examiners are pretty sharp in my experience - I agree with Greg.
> 
> As for "technicity", Hartmut accuses Greg of evading the point, but isn't 
> it 
> just a little bit too easy to keep coming back to a specifically GERMAN 
> definition, made at a date when the problem of software had not yet arisen?.

Like Greg, you enjoy reiteration and evade good arguments.
There is nothing specifically German about the mind-matter border, as I
and others have argued over and over again here.

When Gert Kolle wrote his series of articles on software patentability,
culminating in

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

of 1977, which "problem of software" had not arisen?

> "Technical" is a wonderful word. Nobody knows what it means and most people 
> don't want a watertight definition. 

Most patent lawyers in recent times, that is.  Kolle argued very clearly
that a watertight definition is needed if a very dangerous and
illegitimate extensions of the patent system is to be avoided.

> To quote Willie (Lord) Aldous, "I have great difficulty in
> understanding what 'technical' means". Courts, by the way (except some
> German courts who should know better) are usually very careful to
> avoid definitions which might make a rod for their own backs.  This
> isn't just true in patents.

The word "technical"  can be used to create confusion, and this has been
amply done by the patent law community.  This is because it can be
understood either from the perspective of a theory (with more or less
watertight definitions) or from the perspective of colloquial usage (with
musical and sexual techniques also qualifying for patentability).

We can of course use different words, such as "physical substance",
"transformation of matter" and many others that have been used.  The
reason that we are still using "technical" is just that this term has a
tradition that we want to build on.

Of course the traditional fairly watertight technicity theory, on which
EPO jurisdiction was built in the 70s and 80s, has in the meantime been
voided of meaning by the EPO.  I can't blame Willie Aldous or anyone else
for having difficulties with the EPO's confused concepts.

There are many other words that are regularly being exploited by patent
ideologists for creating confusion.  Such as

        intellectual property
        non-obvious
        commercial use
        as such
        invention

In a recent patent law meeting in Munich, Richard Stallman asked Daniele
Schiuma to stop talking patentabrakadabra doubletalk and instead use terms
that a programmer can understand and that do not have hidden legal
meanings.  Schiuma walked out of the room saying "if you don't want to
learn how to use the technical terms, what's the point of the discussion?"  
But RMS was right.  The whole "science" of patent law scholastics is
corrupted, and it is society that should be walking out of it and leaving
that bunch of doubletalkers to discuss among themselves, while an
interdisciplinary parliamentary round of scientists, epistemologists and
economists determines the limits of patentability, without any patent
lawyers involved.

-phm