From phm@a2e.de  Tue May 15 22:48:39 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Tue, 15 May 2001 23:48:39 +0200 (CEST)
Subject: [Patents] 1 click rejected in Japan
In-Reply-To: <20010515212743.B5501@xdrudis.bcn.isoco.net>
Message-ID: <Pine.LNX.4.33.0105152303510.8605-100000@mulix.oas.a2e.de>

> What puzzles me is one phrase in the article that says:

> >  A representative of the European Commission earlier this year also said that under a
> >  proposed revamp of Europe's patent law, Amazon's patent would not stand.

> What does it mean?. What proposal?. The one the DGIM Consultation was
> about last autumn ? I don't remember anything that would make 1 click less
> patentable. I mean, I remember too vague statements about improving
> quality in the EPO and stuff about expanding subject matter, but nothing
> about changing prior art requirements.

They are not referring to prior art here but to the "technical character"
doctrine of the EPO.  The EPO is currently using a mixture of two
doctrines according to its political needs.  They call that the "dynamic
concept of technical character".

The purpose of the EU doctrine mixture is to create legal uncertainty and
thus allow the EPO to carry on with its contradictory concept as it
pleases. That is why the EU, in Orwellian language, speaks about a "lack
of clarity in the EPC" and a "necessity of creating legal security".

Really there is the opposite political necessity:

- Politicians dont want to commit themselves to anything
- The patent judiciary (especially EPO) does not want clear rules that
  could limit its traditional freedom.

The EPC was already unclear, but it is still far too clear.  Now an
outright contradictory EU directive is needed, because "ex nihilo
quodlibet -- from self-contradictions you can deduct anything you like".

Whenever there is a clear doctrine, the patent community becomes very
uneasy and soon someone creates a counterweight by another decision that
is in contradiction to that doctrine, opening up another window of
options to patent jurisdiction.

Currently we have two such doctrines:
- any practical and repeatable solution is patentable
- any matter-related solution of a matter-related problem is patentable

The latter is very vague, but it has been used to reject a "pension fund
scheme" at the end of 2000. The reasoning was that the "inventive" part of
this scheme is not related to any "technical considerations" (such as
computer hardware properties) but to a calculation rule that does not
necessarily require computer hardware.  The EPO would however have a hard
time rejecting the Amazon 1click patent on those grounds, since the
"inventive" part does require a mouse.  Now if they say that it doesn't
relate to a more effective way of using the computer equipment, they would
start to take the technicity concept seriously again, and then even LZW
compression can easily be shown to be a logical concept that is quite
unrelated to computer equipment. They would then have to argue that
reducing storage space is a technical problem while simplifying the
procedure of ordering books is not.  I have not yet seen anybody come up
with a nearly rigid criterion for this kind of distinction.

The EPO's doctrine is split between attempts at establishing the above
kind of distinction and the acknowledgement that this isn't possible.
Those at the EPO who strive for consistency have proposed a doctrine that
"all practical and repeatable solutions" should be patentable, see

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

while some others in the Technical Boards of Appeal are pretending to be
upholding relicts of the traditional technicity concept.  While the
consistent new doctrine is politically unacceptable, anything near
political acceptability is inconsistent.  Thus sliding back and forth
between the two and making public statements whenever an unpopular patent
is (or might be) rejected on grounds of being "untechnical" is politically
the best choice.

The EU Commission's consultation paper also referenced this
pseudo-technicity concept, but they gave a confusing example.  They said
that a business method for handling electronic orders in a restaurant
should be considered technical if it speeds up the ordering process.
Which of course it will arguably do in any case.  Even the "pension fund
scheme" as claimed does speed up a process that previously worked slower,
and it does so by using "technical" devices.

It seems that the less intelligence you use on being consistent and
serving the public good, the easier it becomes to draw up a doctrine that
perfectly matches current "political" needs.  The more power the less
logic, as Erik said here before.

--
Hartmut Pilch
Federation for a Free Information Infrastructure        http://www.ffii.org/
For a software patent free Europe PLEASE SIGN http://petition.eurolinux.org/





