From phm@a2e.de  Sun Jul 22 18:27:29 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sun, 22 Jul 2001 19:27:29 +0200 (CEST)
Subject: [Patents] Re: overlapping legal regimes
In-Reply-To: <0.700002152.726511399-738719082-995820415@topica.com>
Message-ID: <Pine.LNX.4.33.0107221912150.15426-100000@mulix.oas.a2e.de>

Greg A. wrote:

> >        Here's a thought.  Perhaps, a bare algorithm, with nothing but
> >abstract variables, cannot constitute an invention.  Materialization, to
> >use your notion, starts taking place at a semantic level, when the
> >variables are made to refer to "things" in the real world ......
>
> Which is the law of the land in the United States.  For example, as far
> back as the early 1970s, the courts ruled (for example, in the case of
> In re Christensen, 478 F.2d 1392) that you couldn't patent something if
> the last step of the method was a mathematical equation to be solved,
> even if the equation had real world inputs for the variables.  However,
> as the dissent to the case argued, and later court cases supported, if
> you associate the output with real world "things", then you are
> achieving a useful, specific technological process that is patentable.
>
> For example, suppose I developed an elaborate, but not too elaborate
> formula, for digging an oil well to a specific depth.  Oil well digging
> is about as real world physical as you can get.  Consider three cases:
> 1) I implement the formula mechanical using gears, cam shafts, etc. An
> awkward way to do so, but I can directly connect the mechanical device
> to the oil drilling rig.  The combination of my mechanical invention
> and existing oil drilling equipment, is a novel mechanical physical
> invention that manipulates the physical.  It would seem to me to be
> completely patentable, according to the arguments posted here about the
> physical and mechanical.

Not according to a consistent approach to the technical invention, as
was taken by the decisions

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

	Walzstabteilung (steam roller cutting)
	http://swpat.ffii.org/vreji/papri/bgh-walzst76/

The latter cutting process was technical, and it was new and inventive.
This however does not mean that the invention in there was technical.
It was a "new rule of organisation and calculation, which is completed as
a problem solution before during its implementation on a processor the
realm of technology is set foot upon", as the BGH said, using a wording
which still appears today, at least in the practise of BPatG/17.

In the steam roller cutting algorithm, the steam rollers were only absract
entities such as apples in the addition algorithm.

If from a doctrine it follows that every useful idea under the sun must be
patentable, then that doctrine is apparently useless.   Those who cling
to such doctrines are only leading the patent system ad absurdum.

This wouldn't disturb me much, since I am not particularly devoted to
saving the patent system.

The problem is only that all that reasoning is wrong in the first place
and therefore does not really suffice to lead anything ad absurdum. The
Dispositionsprogramm doctrine does not share the same flaws and it allows
a clear delimitation of the patent system to an overseeable field where it
has been shown to have at least some advantages.

> That's my prediction on how Europe will ultimately decide, ...

Why do you have to conclude all your reasoning, even the fairly carefully
crafted one in this writing, with an appeal to the lemming instinct?

Why not pursue the reasoning for its own value and put it to a test here
before using it as a weapon in political battles?

Mixtures of propaganda and reasoning make a discussion rather tiresome and
can devaluate even valid reasoning.

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





