From phm@a2e.de  Sat Jul  7 12:36:54 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sat, 7 Jul 2001 13:36:54 +0200 (CEST)
Subject: [Patents] doing business
In-Reply-To: <F24R77bieLYCT4aJ6pk00004d5b@hotmail.com>
Message-ID: <Pine.LNX.4.33.0107071310490.1853-100000@mulix.oas.a2e.de>

On Fri, 6 Jul 2001, antonio abrantes wrote:

> In a recent case T931/95, sept 2000 the Court concluded that methods
> involving economic concepts and practices of doing business are not
> inventions within the meaning of art. 52 EPC

> but why does EPO have granted patents in this area?

It seems to me that the EPO jurisdiction on this subject is very
chaotic.  Based on the Sohei decision of 1986 anything can be granted,
but on the other hand some EPO decisions from 1986 to 2000 regularly
use an argumentation of technical invention which would, if consistently
used, lead to the exclusion of all software patents, as stipulated
by the EPO guidelines of 1978 and, less clearly, 1985.

The EPO's Technical Boards of Appeal seem to be using two doctrines at the
same time and oscillating back and forth between them based on some
intuition or perhaps on individual preferences of judges or even political
needs.  In late 2000 there was a political need of persuading the
public, especially at the EU level, that the EPO still has a way of
limiting patentability.  At the 2000-10-20 meeting in London, where
all the leading participants of the debate were present and I also had
the opportunity to participate, the "pension fund system" decision was
proudly presented by EPO people such as Dai Rees and applauded by the
IBM people as a proof that the EPO, unlike the USPTO, still has an
element of rationality that can be used to limit patently absurd
developments such as those in the US.

I then tried to ask "what is technical" and got unclear answers that could
have been summarised as "anything useful":  the standard example used by
Dai Rees and others for explaining what is not technical is that of a
lampshade, on which the decoration is the only new element.  Decorations
are of course "aesthetic creations", i.e. not a functional part of some
useful way to use a computer.

But this distinction is not only broad but also vague.  Don't aesthetic
designs also have a psychological impact that is useful for commerce and
may even be the key to making something applicable as a product?  Isn't
MP3 compression useful because it produces a result that is subjectively
appealing to the ear (i.e. aesthetic rather than measurable in terms
objective experiments)?

The only reason why the exclusion of aesthetic creations from
patentability can be stable is that usually they are not of enough value
to justify applying for a patent.  I.e. the debate is virtual and no real
limitation standard is required because there is no real pressure to break
it.

When the consultation paper of the EC industrial property unit (indprop)
says that a means of making food ordering faster is technical and
therefore patentable, they are in fact proposing to legalise business
method patents.  Everything that priceline.com patents helps to make a
specific business process more efficient.

Of course the Indprop paper is written by or in close collaboration with
the EPO.  And it fails to raise any real examples.  The one about the
restaurant food ordering process is not accompanied by any example claims,
and the paper fails to mention which previous EPO patents would conform
to the new "rule" and which wouldn't.  The whole paper, like most EPO
reasoning these years, is written in what we have called "Gregorian
logics" or "power logics", similar to soviet reasoning about human rights:
meaningless, without any relation to reality, without any effect on
how cases are judged and designed only to create an impression of
legality.

> EP 72183 B1 System and method for processing financial transactions.
> NCR CANADA LTD (CA)

> EP 157416 B1 Financial transaction processing system using integrated
> circuit card.  OMRON TATEISI ELECTRONICS CO., (JP)

> EP 159651 B1 IC card and financial transaction processing system using
> IC card.  OMRON TATEISI ELECTRONICS CO., (JP)

> EP 162221 B1 Financial transaction processing system using on IC card.
> OMRON TATEISI ELECTRONICS CO (JP)

> EP 195098 B1 System for reproducing information in material objects at
> a point of sale location FPDC INC (US) E-DATA

> EP 239638 B1 DATA PROCESSING SYSTEM FOR A FINANCIAL ENVIRONMENT.  NCR
> CORPORATION, (US)

> EP 294187 B1 Computer system for advanced financial applications
> HYPERION SOFTWARE OPERATIONS INC., (US)

> EP 335931 B1 Shopping cart display system INFORMATION RESOURCES INC
> (US)

> EP 471063 B1 Method and apparatus for order management by market
> brokers CHICAGO TRADE BOARD (US)

> EP 479982 B1 VALUE TRANSFER SYSTEM JONHIG LTD (GB)

> EP 512509 B1 Method and apparatus for selective distribution of
> discount coupons CATALINA MARKETING INT (US)

> EP 537391 B1 Desktop forms order system MOORE BUSINESS FORMS INC (US)

> EP 542298 B1 Electronic monetary system CITIBANK NA (US)

> EP 567610 B1 Value transfer system JONHIG LTD (GB)

> EP 663089 B1 VIRTUAL REALITY GENERATOR FOR USE WITH FINANCIAL
> INFORMATION MARSHALL, Paul, S., (US)

> EP 669031 B1 METHOD FOR CARRYING OUT FINANCIAL TRANSACTIONS BY MEANS
> OF A MOBILE TELEPHONE SYSTEM TELECOM FINLAND OY, (FI)

> EP 830656 B1 Trusted agents for open distribution of electronic money
> CITIBANK NA (US)

> EP 838063 B1 METHOD AND DATA SYSTEM FOR DETERMINATION OF FINANCIAL
> INSTRUMENTS FOR THE USE OF FUNDING OF A LOAN WHICH IS AT LEAST
> PARTIALLY REFINANCED DURING ITS TERM TO MAT Realkredit Danmark A/S,
> (DK)

> EP 886839 B1 System and method for commercial payments using trusted
> agents CITIBANK NA (US)




