From phm@a2e.de  Tue Dec 19 10:54:38 2000
Date: Tue, 19 Dec 2000 11:54:38 +0100 (CET)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] monopoly/publicity contradiction?

> It would be ludicrous to reject a patent application when the
> applicant discloses the best means of carrying out the invention, but
> to grant it if the applicant only describes one or more complex and
> expensive embodiments using, for example, discrete logic.

It would not.
The equivalence argument applies only in infringement lawsuits.
You get what is granted.
If a computer program is equivalent, that doesn't mean you can enforce
your patent against a computer program.
On the contrary, if during an infringement proceeding it turns out that
the "invention" is equivalent to a computer program, then this may be
a reason to procede to revoking the patent, since its inventive core is
(probably) not in the technical field.

> A patent is supposed to protect the fundamental invention, not
> merely the particular embodiment(s) described in the specification.

Supposed to.  But if the examinter who granted it overlooked that the
"invention" actually consists in a programming solution, then that is no
reason to "protect" that "invention".
 
> > If "perform the invention" means to put the invention into
> > executable code we even have a patent granting critera
> > that will give the public access to every swpat product.
> > (perhaps the EPO should work on a licence;-)
> 
> I'm not sure that I understand your point here.  The whole purpose of
> the patent system is to give the public access to every invention for
> which a patent is granted.  However, giving the public access to the
> knowledge does not include the right to commercially exploit another
> person's intellectual property.

Since a program is an informational work and a virtual machine, a product
and a process in one, publishing it almost inevitably means allowing its
"commercial exploitation".  

Unlike in traditional technical patents, there is no clear border between
the published documentation and the industrial application.  A program is
both in one.

This is also why this talk about "not the programs as such but only
the technical solution" is nonsense, unless "technical solution" refers to
something different than a programming solution, both at a conceptual and
at a practical level, as explained in the Eurolinux regulation proposal.

-phm





