From phm@a2e.de  Fri Jul 13 12:59:37 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Fri, 13 Jul 2001 13:59:37 +0200 (CEST)
Subject: [Patents] Re: Software Patents
In-Reply-To: <0.700002152.325737651-738719082-995015410@topica.com>
Message-ID: <Pine.LNX.4.33.0107131246220.2461-100000@mulix.oas.a2e.de>

> > many evolutions are aberrations that need to be corrected.

> Perhaps so, but the point I am making is, essentially, a tactical one:
> if you want to tackle the lawyers/patent office officials/judges and
> try to convince them that you are right, there is no point saying "Oh,
> you have got it wrong for the last twenty-plus years". No votes in
> that.

Whenever I present the case, I put the

	European Software Patent Horror Gallery
	http://swpat.ffii.org/vreji/pikta/

upfront, economic studies second and the arguments of legal doctrine
third.

You cannot start from abstract doctrines but gradually have to make people
aware that there is a problem and, consequently, a need to engage in
abstract reasoning.  When people have come to this point and are literate
enough, the Dispositionsprogramm decision really provides everything they
need, even in terms of economic reasoning and for understanding why those
EPO software patents are so horrible.  The mind-matter borderline is imho
really the essential point but you need some concrete evidence before
people will be ready to open their mind for it.

> > > (1) If Open Software groups are really serious about stopping software
> > > patenting then, subject to what I say below, they will have to tackle
> the
> > > law as it is now, not twenty-plus years ago;
>
> > We are tackling the law as it is.
> > Certain groups of lawyers have deviated from it in a way that was
> > anticipated by the Dispositionsprogramm decision and by law textbooks in
> > the 80s, see
> >
> > http://swpat.ffii.org/stidi/korcu/
>
> That kind of argument simply will not impress or convince the people we are
> discussing (e.g. they might say "What about law books *now*? You are just
> looking at historical relics"). If one were to say:

> "We have evidence (empirical, model-based, whatever) that shows a chilling
> effect on software innovation if you go ahead. We should stick to the
> standard established in D/p"

That is discussed on other pages.

This page is somewhat similar in that it says:  "look here, we have
evidence that shows that there is no coherent way of limiting
patentability beyond the one expounded in the D/p".

> then some of them might just listen (or perhaps I am being too optimistic).
>
> > > (2) The only way to stop change to the EPC and to block the planned EU
> > > Directive on patent harmonisation is to produce hard *economic* evidence
> > > that software patents will damage European software producers (e.g.
> > > measurable "chilling" effects on innovation).
>
> > This evidence is there in abundance.  See also
>
> Excellent - this is what is needed.
>
> > http://swpat.ffii.org/vreji/siskuen.html
> >
> > The page does not have all the references to studies in this field.
>
> > Moreover, it is always hard to measure things.
>
> Does this mean we should not try?

Actually people are doing quite a good job on it already.

As one economist recently put it before the Bundestag (German parliament):
economists are not debating whether software patents are bad for
innovation, but only exactly how bad they really are.

> > Prof Straus quoted F. Hayek at the Berlin meeting with a saying like:
> >
> > I prefer inexact and true statements over exact and false ones.
>
> > "reliable statistical data" are often used to dress up false statements,
> > based on some mistakes in the way the question is asked or the like.
>
> That's true but I am not suggesting for one moment that you should rely on
> *their* stats. Why not fully deploy your own?

Surprisingly even the stats of institutions with a pro-patent bias tend
to support our cause.  Moreover we are trying to get some of our own by
participating in a research project.

> > For the normal software developper, a look at the junk that the EPO
> > grants is enough.
>
> Well, again, why not publicly challenge them on this junk? Surely it would
> be good to publicise ludicrous examples, demonstrate why they are silly and
> show the thing to be a mockery rather than assuming people will "intuit" it
> by some mysterious osmotic process. Gregory Aharonian is pretty good at this
>:)

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

> > This stuff is simply indiscussible.
> > By writing an economic study on it, you risk creating the impression
> > that you are treating it seriously.
>
> But one *has* to treat it seriously - otherwise, all we will have is
> name-calling and both sides ignoring the arguments of the other. Indeed, at
> the moment, both sides seems to be talking straight past each other and this
> can only play against the "antis" because of the financial and political
> clout of the "pros".

Yes, the "antis" currently have a much greater interest in not talking
past each other and getting the subject seriously studied.  Perhaps it is
this dynamics of powerlogics vs logics which moves innovation in social
sciences ahead from time to time.

> > > Even where directed to the present day, purely legal arguments will
> > > not necessarily work because, frankly, even the existing laws can mean
> > > anything you want them to mean (let me give you an extreme pro-patent
> > > interpretation of the existing EPC Art. 52 prohibition purely as an
> > > example: "a computer program ... as such" only means its expression in
> > > code as protected by copyright - everything else is patentable);
> >
> > In that case the law has no limiting meaning, is full of contradictions
> > and creates arbitrary results.
>
> Be fair - What do you think law really is? It is just a bundle of words in a
> particular language and is open to interpretation. If language were as clear
> and precise as mathematics, there would never be an argument about
> anything!!

Some legal concepts require philosophical sophistication, some are not
well known in all European countries or among all concerned lawyers. The
concept of technical inventions usually does little to bring money into a
law office, which is why few people have bothered to understand it. Not
understanding it is often much more expedient for the purpose of patent
lawyers and patent offices.

If a legal/philosophical concept cannot be maintained in law practise,
that does not necessarily indicate any lack of clarity or adequacy in
that concept.

> Now, I accept that you may not like the interpretation I put up as an
> example (let me be clear - I am not sure what I think about it) but it *is*
> sustainable and it is probably the model to which the pro-patent lobby are
> inching (see discussion paper on the draft Directive, for example) in the
> event that they cannot get a general lifting of the "program as such"
> prohibition.

It is built on an arbitrary concept of "technical effect" for which no
definition is given.  The examples (about an ordering process for a
restaurant which can be patented if it contributes to an improvement of
speed) are both abstract and unclear, allowing anything to be deduced from
them.  No examples of real-life patent claims which should be acceptable
or unacceptable under the new rule are given.

The whole point of the paper is to create an unclear law to match the
unclear practise of the EPO.

> I have been studying/researching/teaching IP law for nearly 10 years and in
> that time I have seen national courts, national patent offices and,
> particularly, the EPC "salami slice" away at the Art. 52 prohibition. In the
> case of the EPC, it argues (in relation to all bars on patentability) that
> there is a general presumption that exclusions to patentability must be
> interpreted restrictively; this is partly a rational legal point but
> alongside it you must remember that the EPO is self-financing from
> application fees i.e. the more patent apps. get into and through its system,
> the more money it gets.

Right, and this is the interest which the new directive apparently is to
serve.  Both the European Commission and national governments are afraid
to ask the question where exactly the limits should be.  Instead they
order a lot of economic studies, all of which have so far made it clear
that software patents are harmful, and then, in a strange twist of logic,
conclude from them that the current practise of the EPO must be legalised.

> > It is clear that law cannot be interpreted just as you like.
>
> Of course not - one cannot say black is white but, by the kind of "salami
> slice" approach I have mentioned, one can get it to a pale grey. The
> question is: how far can you bend the meaning of a word or phrase before it
> "breaks"? What I have given you is the most restrictive possible
> interpretation of the "programs .. as such" bar without actually
> eliminating/nullifying it.
>
> > There are
> > certain accepted methods for interpreting law: literal, historical,
> > systematic, intentional etc.
>  In any case the result of the interpretation
> > must be meaningful
>
> I am fully aware of interpretational techniques. At the moment however, it
> seems that many "antis" are ignoring the interpretational techniques that
> lawyers use and simply substituting their own interpretational norms. Is
> this any better? Surely one has to meet the "enemy" to engage meaningfully?
>
> The interpretation is perfectly meaningful (even if one doesn't like it -
> and, again, I'm not sure about it), for two reasons:

I contest both:

> (a) logically sustainable - the interpretation put forward is still
> congruent with the other exclusions in that it would still lock program
> protection between, on the one side, those aspects of programs covered by
> copyright (this is the rationale of the literary and aesthethic creations
> exclusion which is closely related to program bar, particularly given that
> programs are now treated as literary works within copyright) and, on the
> other, the bar on patenting as it affects mathematical formulae and other
> unapplied abstractions; and

The EPO interpretation makes the whole list of exceptions meaningless in
practise.  You could write anything on that list and the result would be
the same as if nothing had been written on it.  If your words have no
relevance to life, you can of course arrange them in some logically
consistent virtual space.  But even here I can't see the logics in
dividing computer programs (and other items of 52(2)) into "computer
programs as such" and "technical computer programs".  What about
"technical computer programs as such" ?  What if, as everybody agrees, all
computer programs have a technical effect?

What makes the EPO interpretation even worse is that it fails to provide a
systematic explanation of what a technical invention is.  Those
explanations that were attempted, e.g. by Mark Schar, result in everything
being patentable, without any difference to USPTO practise.  But that of
course cannot serve as a meaningful interpretation framework for art 52,
which demands a limitation, regardless whether 52.2c is difficult to
understand.

> (b) historically sustainable - do you know/remember why computer programs
> were excluded from patentability under the EPC? Having studied this closely,
> I have found that the reason is the same as the USPTOs policy change on
> program patentability in the late 1960s - there was a fear that a lack of
> searchable prior art and trained staff would mean that SRI applications
> would overwhelm the EPO and *not* because there was any real thought that
> program patents were wrong/untenable. Before the EPC, many national offices
> in Europe granted program patents quite happily and so did the USPTO before
> 1968. Therefore, turning the thing around, one could say that any strict
> interpretation put on Art. 52 is ahistorical and wrong (many pro-patent
> lawyers have, in fact, done this - I can give you refs. if you like).

The pro-patent lawyers are spreading a lie.
I can give you refs of articles by leading law scholars of the 60s and 70s
which extensively discuss the issue and come to the conclusion that
computer program innovations cannot be patented because they are not
technical, i.e. do not constitute a teaching on the utilisation of
controllable natural forces to cause a material effect.  The
Dispositionsprogramm decision is not an isolated decision but a brilliant
summary of a debate that had been raging for nearly 20 years and in which
the software patent critics had gained the upper hand.

The difficulty of finding prior art may have played a role in getting the
other side to compromise.

> >, and the kind of interpretation
> > that is exemplified in Dispositionsprogramm fulfills this requirement
> > while "modern" ones such as the one you are sketching above don't.
>
> What the lawyers will, of course say is "Prove it".

you just need to read the Dispositionsprogramm decision and art 52 EPC
together, perhaps also adding Kolle's article and the EPO guidelines of
1978.  Then compare Schar 1998 (which is about the best paper from the
representatives of the current pro-swpat faction, most others, including
the CEC consultation paper, are even less worthy of discussion).

The former provides a rule that eliminates about 3% of present-day EPO
patents (and more, if you add further restrictions).  The latter aligns
the EPO on the practise of the USPTO or, in the case of some of the even
more junky papers, allows it to selectively use the Dispositionprogramm
reasoning on cases it doesn't like, such as pension fund system.

You'll have a hard time trying to argue that USPTO practise is adequate
for today's needs of software developpers, let alone conformant to the EPC
or the intention of the lawmaker.

> > > (3) There is absolutely zero prospect of getting sui generis
> > > protection for computer programs - the United States will simply
> > > threaten to apply trade sanctions if we deviate from their line, just
> > > as they did over the introduction of program copyright (and I can
> > > guarantee that the WTO won't stop this).
> >
> > There is a lot of freedom to extend copyright in certain ways if there is
> > a legitimate demand for it.
>
> Not any more. If we look at the combined effect of TRIPS and the WIPO
> Copyright Treaty 1996, there is actually very little room for manoeuvre.

I'd be very interested to hear more about that.
I think Mr. Halbersztadt's idea was to allow a short term extensive
application of copyright (or competition law) in case of commercial
use of some very original and complicated algorithms.
Another idea was to adapt utility certificates, which are of course
allowed under all current treaties and which are in fact available
for "program logic creations" in Austria now.
There is not much demand for this kind of extension in the software
industry, but, according to a

	French administration study report
	http://www.pro-innovation.org/rapport_brevet/

one political advantage of allowing something like that would be that it
could provide an interface between the European and the American system.

...
> > The pressures come only from a lobby of lawyers in the US, and whether
> > Europe can resist them is merely a matter of will.
> > Usually corrupt governments are especially easy prey of this type of
> > pressure.
> > It is always Japan and some third-world countries that are pressured into
> > compliance first.
> > Maybe Brussels is more susceptible to this kind of pressure than Berlin
> > and Paris -- I don't know.
> > In any case there is at best a certain political reality, not a legal
> > necessity, which we have to take into account.
>
> On that last point, I largely agree. What I suppose I am trying to say is
> that one canot think that there is some "true" meaning to the law which one
> can find and give; it is constantly in flux, changing to reflect the politic
> al, social and economic circumstances around it - simply standing by D/p and
> saying "this is right" will not be enough to stop the juggernaught.

Some elements are in flux, some remain constant.
The D/p decision provided a flexible framework by using a broad term like
"controllable natural forces", which can but needn't include all kinds of
new phenomena, which, by the process of technology, become to
some degree (e.g. non-deterministically) controllable.
The D/p decision however also explains where the borders of this
flexibility need to be.
These borders are based in the law (art 52), in customary law theorems, in
constitutional considerations and in objective necessities (i.e. the
impossibility of any other clear limit, in the meantime nicely proven
by EPO practise).

Sorry if I conclude by spamming the list with the salient concluding
sentences from D/p with a few comments:

http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexen.html

   However human mental activity does not belong to the controllable
   natural forces in the sense explained above. This concept refers only
   to those natural forces which lie outside the activity of the human
   mind and are controlled by man with help of the human mind. Otherwise
   human thinking in its entirety would be subsumed under the concept of
   technology, with the result that this concept would lose its specific
   and distinctive meaning. The fact that the inventor has proposed to
   use technical means for practically executing the rule of organisation
   and calculation and that for this reason he has formulated the rule
   with the peculiarities and capabilities of the computer in mind does
   not change the untechnical character of the rule itself: it is of no
   meaning that in order to put the completed rule to practical use
   technical means can be used or should preferably be used: The rule,
   which by itself constitutes a mental-logical instruction, does not
   become technical by the fact that during its application technical
   means -- be that the writing device or the computer of the person who
   applies this rule -- are used. It is not enough that technical means
   are occasionally used for applying an untechnical teaching; the use of
   these technical means must be an integral part of the problem solution
   itself, it must serve to achieve the causally overseeable result, and
   its non-use must inevitably cause the aimed-for success to remain
   unachieved.


Here the source of confusion for most people is that they believe that the
aimed-for success consists in a certain program behavior, which is
technical.  The court however analysed where the innovation lies, and
thereby reduced the teaching to an abstract rule of organisation and
calculation, considering the rest as "verbal clothing" irrelevant to the
claimed inventive solution.  If you reduce a chemical reaction to a
chemical equation and execute only the equation but not the reaction, then
you get nothing -- the aimed-for result is not achieved.  If you reduce an
information process to its informational representation then you can still
perform the process -- the causality of natural forces is not part of what
you invented.

   ...

   The caselaw has characterised the notion of technology by its relation
   to the world of phenomena, contrasting with the world of
   reasoning/mind. According to the Wettschein (betting certificate)
   decision of the Federal Court, a technical invention is present, if an
   instruction is given to use certain technical means for achieving a
   technical result by using technical means. In the Rote Taube (red
   dove) decision, this court generalised this definition so as to
   accomodate other natural forces than those of physics and chemistry,
   e.g. those of biology. However in all cases the plan-conformant
   utilisation of controllable natural forces has been named as an
   essential precondition for asserting the technical character of an
   invention. As shown above, the inclusion of human mental forces as
   such into the realm of the natural forces, on whose utilisation in
   creating an innovation the technical character of that innovation is
   founded, would lead to the consequence that virtually all results of
   human mental activity, as far as they constitute an instruction for
   plan-conformant action and are causally overseeable, would have to be
   attributed a technical meaning. In doing so, we would however de facto
   give up the concept of the technical invention and extend the patent
   system to a vast field of achievements of the human mind whose essence
   and limits can neither be recognized nor overseen.

   ...

   It can furthermore be argued with good reasons that, given the
   unanimity with which the jurisdiction and the legal literature have
   always insisted on limiting the patent system to technical inventions,
   the above reasoning constitutes a theorem of customary patent law.

   Whether we want to postulate such a theorem is however not essential
   for this discussion, because also from a purely objective viewpoint
   the concept of technical character seems to be the only usable
   criterion for delimiting inventions against other human mental
   achievements, for which patent protection is neither intended nor
   suitable. If we gave up this delimitation, there would for example no
   longer be a secure possibility of distinguishing patentable
   achievements from achievements, for which the legislator has provided
   other means of protection, especially copyright protection. The system
   of German industrial property and copyright protection is however
   founded upon the basic assumption that for specific kinds of mental
   achievements different specially adapted protection regulations are in
   force, and that overlappings between these different protection rights
   need to be excluded as far as possible. The patent system is also not
   conceived as a capturing basin, in which all otherwise not legally
   privileged mental achievements should find protection. It was on the
   contrary conceived as a special law for the protection of a delimited
   sphere of mental achievements, namely the technical ones, and it has
   always been understood and applied in this way.

   Any attempt to attain the protection of mental achievements by means
   of extending the limits of the technical invention -- and thereby in
   fact giving up this concept -- leads onto a forbidden path. We must
   therefore insist that a pure rule of organisation and calculation,
   whose sole relation to the realm of technology consists in its
   usability for the normal operation of a known computer, does not
   deserve patent protection. Whether it can be awarded protection under
   some other regime, e.g. copyright or competition law, is outside the
   scope of our discussion.

The BGH, based on an extensive debate in the 60s and 70s, knew very well
that the limits of the technical inventions can either be defined in this
way or given up.  The EPO knows perfectly well that it has given up these
limits, but it is still trying to "steal the ringing bell while covering
its ears", as the Chinese idiom goes -- everybody else is still hearing
and shouting "catch the thief!"

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/



