[Patents] ABS, AIPPI and trend to zigzag guideline

[phm@a2e.de (PILCH Hartmut)]

> I'm sorry if I've caused people on this list to become annoyed.
> I entered this mailing list a couple of days ago and its obvious
> that several persons on this list have found my presence and my
> contributions to this list to be unprofessional or uncritical.

Probably nobody found it "uncritical".

Some people may have found it "unprofessional", which could be a Newspeak
codeword referring to "critical".  Under this Newspeak, "professional"
means "concerned exclusively with parroting holy messages from
authoritative courts for the sake of getting better grades in law school
or more money from clients".  Seen from this perspective, even the most
informative articles about patent law developments may be unprofessional
and undesirable on this list.

I have so far not yet mentioned this aspect of patent movement sociology
in my (German language) documentation on

        Die Patentbewegung (The Patent Movement)
        http://swpat.ffii.org/stidi/lijda/

Another new piece of text I prepared is

        BGH 1980: "Antiblockiersystem"-Entscheidung bremst die "Hexenjagd
        auf das Untechnische"
        (Federal Court 1980:  Anti Blocking System Decision puts brakes on
        the "Witch Hunt against the Untechnical")

        http://swpat.ffii.org/vreji/papri/grur-bgh-abs80/

An English summary can be found under

        http://swpat.ffii.org/vreji/papri/

This may still be interesting even to "professionals", as it is part of
the history that lies behind today's EPO decisions and comes out here and
there even today.

The recent "pension fund" decision and other decisions of the early 90s
here and there used the old technicity concept, somewhat in an
unsystematic zigzag manner.  This zigzag course was introduced by the
"Anti Blocking System" decision of 1980, because most patent lawyers at
the time felt great unease about the clarity ("schematic approach") of
the earlier "Dispositionsprogramm" decision of 1976.  Both decisions
found their way into the EPO guidelines of 1985.

Recently those on the EPO Technical Boards of Appeal who are fed up with
the zigzag course and want a consistent set of criteria have proposed to
remove Art 52(2) altogether and worked out a doctrine according to which
"any practical and repeatable solution" must be patentable

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

However, at the latest AIPPI conference of Melbourne, many European
representatives did not want to go along with this course and rather
preferred a return to the old zigzag course.  This proposition came from
scholars like PA Betten and Ralph Nack (MPI), who contradicted a proposal
to make business methods generally patentable worldwide, saying that the
time was not ripe for this and that even the field of informatics has not
been completely digested by the patent system, so that it may be necessary
to limit patentability to machine-near software patents, i.e. patents that
require hardware engineering knowledge, see

        http://ffii.org/archive/mails/swpat/2001/May/0008.html

and the links referred to there.

This again is a very unclear concept, because even the One-Click patent
requires some knowledge about how a mouse works.  But it seems to be what
the patent movement at the EU Commission is currently heading for.  They
are hoping to at least confirm their zigzag course, which was a deviation
from a clear and law-conformant doctrine in the first place.  By
confirming a zigzag course, you cannot claim to be bringing "clarity and
legal security" into European software patent legislation.

-phm