[Patents] Re: Patents on user interfaces.

[phm@a2e.de (PILCH Hartmut)]

> >The old European doctrine that explains technical as "belonging to the
> >field of applied natural science" or "teaching new insights about the
> >causal relations between natural forces and a physical effect" does not
> >have those drawbacks.
>
> I disagree.  If you formally define these old European phrases, one
> can show that software satisfies them as well.

The old doctrine, such as the one formulated in the Dispositionsprogramm
verdict of 1976 and in the EPO examination guidelines of 1985, has been
used for decades to reject software patents.

It is no less consistent than the new "all practical solutions" doctrine.
The BGH (German Federal Court) did a good job in defining it rather
rigidly.

Of course you can always nitpick on things you don't like.
I can also nitpick on the new "all practical and repeatable solutions"
doctrine.  I could for example ask whether a new scheme of taxation or of
musical composition should be patentable, and I could create all kinds of
borderline cases where something is on the verge of not being
repeatable.  So what?  Legal terms are always fuzzy, and the two
mentioned doctrines are reasonably sharp.  If they aren't sharp enough
we can still sharpen them.  The nice thing about the old doctrine is that
it is based on a universally acknowledged sharp categorial difference:
that of mind vs matter, material vs immaterial etc.  This difference was
not developped by patent lawyers, nor can it be declared outdated by
patent lawyers.  Gert Kolle, apparently a friend of systematic doctrine
(the old one as well as the new one), explained that very well in his
article on the Dispositionsprogramm verdict of 1977

        http://swpat.ffii.org/vreji/papri/grur-kolle77/

> The phrases are not
> better than "technical effect" as a discriminator.

Both doctrines are based on "technical effect".
Only the meaning of "technical" is radically different.
In the old one, it is "referring to empirical knowledge about natural
forces" while in the new one it is "referring to objectivised processes".

Schar says it quite well in his article

        http://swpat.ffii.org/vreji/papri/jwip-schar98/

The new doctrine is actually based on the old one, but two of the
restricting conditions are removed, the others retained.  Nothing new is
added.

> If a hardware circuit is "natural", then so too is software.

??
You seem not to know the old doctrine.
We are not talking about something being natural or not.

> Additionally, while olf decisions are interesting for learrning and
> guidance purposes, all laws evolve, especially those that deal with
> science and technology as science and technology evolves.

Law can evolve in a wrong or unfortunate direction.
The evolvement of law does not primarily reflect any realities of
technology but to a much higher extent the realities of the political
framework in which law is situated.

> The "computer program" prohibition in 52.2.C is illdefined, vague and
> ignored in practice.

It is not a prohibition but an exclusion.
Its meaning is clear according to the old doctrine, which you can find
explained with more modern words in

        Eurolinux Proposal for a EU Software directive
        http://swpat.ffii.org/stidi/eurili

> It should be removed to end this hypocrisy.

Or the hypocrisy alone could be stopped.
Then the exclusion could very well stay.

> And no new prohibitions should be added until the language being used
> is defined more formally and consistently.  Language like "technical
> effect", and "natural [anything]" are neither well-defined or being
> used consistently.

Terms like "technical effect" etc don't appear in the law.
The formal definitions are, if at all, usually to be found in law
commentaries, which are again based on jurisdiction.

It is true that the whole Art 52(2) makes no sense under the current
practise of the EPO's Technical Boards of Appeal.  You could put anything
into it and it would have no effect whatsoever on what the Boards decide.

This is precisely why the EPO's Basic Proposal originally pleaded for the
deletion of Art 52(2).  That would have been consistent.  But being free
of internal contradictions is not enough.

> Then one can address the underlying issue for some commentators - should
> more and more of the entire patent system be eliminated.

No. As far as I am concerned, only about 3% of the currently granted EPO
patents should be eliminated on the basis of a return to the traditional
patentability borderline (matter vs mind, physical vs logical, empirical
knowledge about natural forces vs pure reason).

-phm