[Patents] Report on software patents.

[PILCH Hartmut phm@a2e.de]

> >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.
> 
> Which bans large numbers of mechanical, chemical, biological, and
> electrical patents as well.

It doesn't.
Read again the regulation draft I wrote.
I am applying this only to cases where a program running on known hardware
is to be tested for patentability.
Once you have unknown hardware, you don't have the problem.
Which is the case for most mechanical and chemical patents anyway.
When you do have merely a program, the test is whether your solution is
based on computation only or also on new experimental knowledge. 
This eliminates only true software patents and leaves even cases like
the anti blocking system patentable in principle.
 
> Look with a supercomputer and a superSPICE (a computer program for
> circuit analysis) I can predict computationally whatever "matter
> transformation" is being caused by an analog or digital circuit
> being patented.   

Maybe by a circuit.
But not by chemicals or drugs.
And even with circuits, your armor may be so heavy that this is not
practicable.
Terms like "predictable by computation" are, like all legal terms,
subject to common-sense interpretation.
Perfectionists are nihilists.  Selective nihilists are egoists.
What about applying some perfectionism to the concept of non-obviousness?
Is there anything non-obvious in this world?  Can this be
precisely measured by a machine without a dose of common sense?  
What about novelty?

> Using mechanical CAD programs, I can predict the
> by computational means the matter transformation caused by a large
> number of the mechanical design patents being applied for (just
> determine the Langranging and integrate).

Maybe these in fact shouldn't be patented.
But my regulation proposal doesn't exclude them anyway, see above.
 
> And maybe anything computationally predictable - mechanical,
> chemical, circuits, optics, software - should not be patentable.
> But once again I will point out that this just shows that there
> is nothing peculiar about software to treat it different for
> patenting purposes.

What you state here and below is your already well known set of beliefs.
But without any new reasoning supporting it.
The below regulation shows clearly that this is feasible.
 
> Any definition of how much "technical effect/industrial application"
> has to appear in a software patent will easily be met by filling,
> at great expense to the inventor, the patent specification with lots
> of boring examples.  The US courts finally realized the futility of
> trying to come up with such definitions, and you Europeans are going
> to waste a lot of time doing so as well.  Definitions are NOT the
> way to solve the software patent problem.
 
> Any computationally predictable is also NOT the way, because such a
> test would find as many targets inthe mechanical and chemical arts
> as it would in the computing arts.  Heck, the universe is a quantum
> computer anyways, so inherently everything is predictable :-)

Maybe.  I wonder how you can know that.  
Laplace believed that but was convincingly refuted by Kant and others.
In any case, the OS of that quantum computer is not known yet.
At best some parts are known, and more will be known.
The mission of the patent system may be to make unknown parts known.
In areas where the computer is known and the rest is only software, the
mission of the patent system may be considered completed. 
 
> In the end, you will fail trying to distinguish software from all
> else.  Software meets all of the criteria of being a science, which
> implies it is a technology, enough so to legally satisfy any
> convoluted requirements specified by European rulings specified by
> "technical effect".

Your answer is much more convoluted than my proposed regulation:

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.
     _________________________________________________________________