[Patents] WHAT WE LOST DUE TO GREG

[srctran@world.std.com (Gregory Aharonian)]

Hartmut reiterates endlessly a question I have answered repeatedly:
> Should everything under the sun that is novel and "non-obvious"
> be patentable?

Who knows?  But when it comes to software, the answer is yes, under the
current laws of both the United States and Europe.  Whatever complaints
you have about software patents (I find the slavery complaint totally
hilarious and totally insulting [to those who were slaves]), those
complaints apply to all other areas of technology where there are
patents.  Slavery?  How about death, as in the death of people with
AIDS because they can't afford to buy patented AIDS drugs.  But even
in that world, most people are not talking about ending the patent
system, but rather are working to make the economics of patenting more
practical for all concerned.

The key phrase, when talking about software patents, is "other areas
of technology".  Software is an area of technology, it is an industry,
its processes and products therefore as patentable as any other
technology/industry where there are patents.  The illogic and dishonesty
is from those who wave the banner of "technical effect" against software
patents (or business patents), but don't define the meaning of the
phrase.

Well, I argue that when one does formally define "technical effect",
the definition is easily satisfied by software.  So on both sides of
the Atlantic, the patenting of software is completely compatible with
the current laws (except for archaic inconsistent language such as
52.2.C).

This is a discussion list about software patents.  Can there be new
software ideas?  Yes.  Will some of these software ideas be 
non-obvious/inventive?  Yes, but not many when properly examined.
Will such software ideas achieve a technical effect?  Yes, in all
cases, because software is a technology with an industry that makes
products.

Do software patents cause problems, cause people to change their
business activities, restrict how people use the newly patented
software?  Yes.  But is that any reason to eliminate software
patents?  No, because the same problems occur in other areas of
technology.  There is nothing special, nothing holy, nothing in
software worth worshipping.

I don't deny the complaints people on this list make about software.
Heck, I am probably the only person on both sides of the Atlantic
to be personally sued for infringing a software patent.  But I do
deny that the complaints about software patents are unique to software
technology.  And therefore I reject attempts to carve out special
laws for handling the protection of software ideas, when a lot of
the complaints can be addressed by making the examination system work
better, which doesn't require any special laws and definitions of
ambiguous terms.

The US courts have gradually come to this position about software
patents over the last twenty years, with much well reasoned thought
and arguments (admittedly using some illdefined terms).  The
European Courts (EPO, German, etc.) are in a sense where the US
courts were in the late 1980s/early 1990s.  I suspect in time the
European Courts will eventually converge to the US courts views
for software patents, though it would save a lot of time and money
if they just skipped to the end.

And if not, I will bet any amount of money that in a TRIPS challenge
made by the US against any European laws discriminating against
software patents, that the US position would prevail - for one
simple reason - there doesn't not exist any language that one can
clearly and unambiguously discriminate software as a technology from
any other technology.

This then reduces this argument to one issue - should non-physical
ideas (novel,nonobvious) such as software be patentable, should a
patent system that originated in a mechanical world accomodate 
non-mechanical technologies as they arise (and eventually dominate)?

At least for software, I say yes.  I prefer Turing over Pilch.

Greg Aharonian