[Patents] Re: Software and Technical effect

[phm@a2e.de (PILCH Hartmut)]

On Sat, 5 May 2001, Roland Orre wrote:

> On Thu, 3 May 2001, Gregory Aharonian wrote:
> > Software is a technology.   PERIOD.   All software applications
> > achieve a technical effect (if anyone in Europe bothered to define
> > a scientifically rigorous definition of "technical effect".)
>
> Roland:
> You, Mr. Aharonian, use these definitions to claim that computer
> programs would be patentable according your US prejudicies.
> None of these are true and the claim is therefore false.
>
> According to Webster's "technology" is defined as:
> Etymology: Greek "technologia" systematic treatment of an art
> 1a: the practical application of knowledge especially in a
>     particular area
> 1b: a capability given by the practical application of knowledge
> 2:  a manner of accomplishing a task especially using technical
>     processes, methods, or knowledge
> 3:  the specialized aspects of a particular field of endeavor
>
> The word "software" is defined as:
> something used or associated with and usually contrasted with
> hardware: as
>      a: the entire set of programs, procedures, and related
>         documentation associated with a system and especially
>         a computer system;
>      b: materials for use with audiovisual equipment

> Mr Aharonian, as you can see from these definitions, you are wrong.

It is very impressive to see you being able to concludently argue that
even on the basis of such weak definitions, taken from the colloquial
language, as those of Webster.

In the legal tradition, especially that of Germany, there have been much
more rigorous definitions of what is technical, see

        http://swpat.ffii.org/stidi/korcu/

and the texts referred to therin.  Of course I don't know what
"scientifically rigorous" could mean.  Definitions of concepts are not
based on empirical science but on philosophy.  So I take "scientifically
rigorous" to mean "rigorous and worth of worship by those who want to
build a new religion around science in order to deter critical thinking".

Also, for the term "software", more rigorous definitions exist, including
the ones you elaborate later.  The confusion is caused by the dual nature
of computer programs, from which every side can pick for itself what it
needs, so that the whole picture is rarely considered.

For a very short and fairly rigorous set of definitions of both concepts,
see the Eurolinux proposal for a clarification of the invention concept

        http://swpat.ffii.org/stidi/eurili/

quoted in execerpts below:

    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 building plan and an operating instruction,
       a description of a process and a solution to a problem, a literary
       work and a virtual machine, a product and a process, all in one.
    2. A technical invention controlled by means of a computer program
       can, at a conceptual level, be distinguished from the program as
       such. Likewise a method for producing gameboards can be
       distinguished from the game as such. The particle "as such" in Art
       52 (3) EPC is to be understood only in the light of its 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 meaningfully differentiated 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 problem and the solution must lie in a technical realm
       outside of the program, 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 objects 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 the production of material goods, such that the
       causal relation between the means and the end can be reliably
       validated only by experimentation with natural forces (empirical
       verification) and not by computational deduction from given set of
       truths (mathematical proof).
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-phm