[Patents] Report on software patents.

[PILCH Hartmut phm@a2e.de]

> Hartmut's proposal contains the following phrase arguing against
> "non-technical" computer programs (a concept that has no meaning
> in America):
>     I.e, the solution of the problem must lie in a technical realm
>     beyond the realm of programming, and the exclusion rights
>     derived therefrom must be directed to material objects outside
>     of the program, such as e.g., chemicals or automobile engines.
> 
> Reading this, I conclude that Hartmut's proposal would ban a 
> patent on a new sorting algorithm by itself, but not a new sorting
> algorithm applied to a chemical process or automobile engine control.

No.  The core of such an invention is not technical.  

At least if the process is to be program controlled, it must use natural
forces to cause a matter transformation not predictable by computational
means.  The result of sorting is computable.

If I was asked to legislate, I'd apply this criterion throughout, thus
effectively cutting back patents everywhere except in the chemical,
biological, pharmaceutical and a few other realms.  But in the below
proposal I was more cautious, making it be used only in those cases where
one ot the excluded items on the Art 52 list must be distinguished from a
technical invention.

Did you read the whole proposal, including item 4?

Here's the latest version:

http://swpat.ffii.org/stidi/eurili/indexen.html

We propose that the European Commission draft its planned directive on
the software patent problem along the lines of the following text.

     _________________________________________________________________
                                                                         
   
Regulation about the invention concept of the European patent system and its
        interpretation with special regard to programs for computers
                                      
   
   Led by the understanding that drawing the borderline between
   patentable and non-patentable objects requires particularly clear and
   explicit decisions at the legislative level
   
   impressed by the experience that Art 52 EPC has left room for
   misunderstandings and inconsistencies at the jurisdictional level
   
   concerned by the prospect that new rules created by various lawcourts
   could increasingly impede knowlege diffusion and innovation in the
   information society
   
   we clarify the following:
   
    1. The term "programs for computers", in short "computer programs"
       refers to the program at all design levels from the conceptual
       plan to an instruction executable by a human or by a processor. A
       computer program is a plan and an instruction, a literary work and
       a virtual machine, an interface and an implementation, a problem
       and a solution, a process and a product, all in one.
    2. A technical invention described by means of a computer program
       can, at a conceptual level, be distinguished from the program as
       such. Likewise a "method for the production of chessboards" can be
       distinguished from the chess game as such. The particle "as such"
       in Art 52 (3) EPC is to be understood only from its syntactic
       function in the above sentences: it serves to differentiate
       between two mutually independent categories by which a potentially
       patentable object could be described. A "computer program with a
       further technical effect" belongs to the category of computer
       programs and can therefore not be distinguished from a "computer
       program as such".
    3. Computer Programs are not inventions in the sense of European
       patent law. Chemical processes, tyre braking processes and other
       technical processes controlled by computer programs can be
       inventions, as far as they are distinguishable from the computer
       program not only at a conceptual but also at a practical level.
       I.e. the solution of the problem must lie in a technical realm
       beyond the realm of programming, and the exclusion rights derived
       therefrom must be directed to material objects outside of the
       program, such as e.g. chemicals or automobile engines. The same
       applies to all categories of non-patentable object listed in Art
       52 (2) EPC.
    4. A "technical" process is one that uses natural forces to directly
       cause a transformation of matter. Objects that contain both
       technical and non-technical features are inventions only if the
       part that is claimed to be new and inventive, i.e. the core of the
       invention, lies in the technical realm. A technical process
       controlled by a computer program on known hardware is an invention
       if and only if it uses natural forces in a new way to directly
       cause a success in production of material goods that could not
       have been predicted by mere computation based on prior knowledge.
     _________________________________________________________________