From phm@a2e.de  Tue Jul 24 19:09:18 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Tue, 24 Jul 2001 20:09:18 +0200 (CEST)
Subject: [Patents] Re: overlapping legal regimes
In-Reply-To: <0.700002152.1472534266-738719082-995991741@topica.com>
Message-ID: <Pine.LNX.4.33.0107241958230.1871-100000@mulix.oas.a2e.de>

> > > > >     Here's a thought.  Perhaps, a bare algorithm, with nothing but
> > > > > abstract variables, cannot constitute an invention.  Materialization,
> > >
> > > Might software embodiment may constitute materialization?
> >
> > Software is an abstract information structure. The transformation of
> > information structures into magnetic structures on a disk is a
> > materialisation.
> >
> 	Within the logic of Hartmut's contributions, I do not understand
> this last remark.  Magnetic structures here would be a copy of the
> software in a copyright sense, but I do not see how they would
> industrially apply them, in a patent sense.


Storing information on a magnetic disc is technical, but usually not new
and non-obvious.

Those software patents that claim a "program on disk" actually do not
pertain to a method of writing information to disk but only to an
information structure (as such).

If you had invented a new type of super high-density laser disk, you would
not claim it within a software patent.

> Even if one specified a hardware platform onto which the software were
> loaded - "copied", according to some copyright case laws - there would
> still not necessarily be industrial application.

No, because just specifying something doesn't make it part of the
invention for which you could be entitled to get a patent.
You need to actually have invented it.

> I had thought that the whole discussion here was about the extent to
> which software had to be specifically interfaced with "nature" before
> it could be part of a patentable invention.

We were discussing about the limit between the idea (information
structure) and the realm of technology, which I defined as the area
between a pure idea and its implementation.

A patentable invention is an invention in the realm of technology, not in
the realm of ideas, i.e. an invention of a chemical process (which you can
control by software) or a laser disk head (which you can use to store
software).

> The notions being tossed around here - for example: idea (of
> whatever sort, abstract, functional, aesthetic, etc.), expression,
> materialization, nature, etc. - are all metaphysical.  Using them in
> arguments for categorically including or excluding software from
> patentable technologies is quixotic.  The general criteria of utility,
> industrial application, reduction to practice, etc., seem hard to improve
> upon.

These "general criteria" are just as "metaphysical".
Abstract philosophy is the only connecting element between the law and
its effects on practise.
If you are too lazy to engage in philosophical reasoning, you will get
chaotic and casuistic patent doctrines, and even worse, it will be very
hard to adapt the patent system to any economic or social purpose that
it might be supposed to serve.

> But the crunch will always come in the case law.

which, if left alone without systematic thinking, is just an erring
juggernaut, driven by the interest of those who make a living on it.

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



