From phm@a2e.de  Wed Aug  1 09:15:16 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Wed, 1 Aug 2001 10:15:16 +0200 (CEST)
Subject: [Patents] stealing with a further righteous effect
Message-ID: <Pine.LNX.4.33.0108011014230.12264-100000@mulix.oas.a2e.de>

---------- Forwarded message ----------
Date: Wed, 1 Aug 2001 10:10:28 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
To: intprop-l@topica.com
Subject: Re: What is an invention?

> "... Only an invention is patentable, and that must, according to the only
> workable definition that I have encountered so far, a technical teaching,
> i.e. a teaching on how to turn ideas into matter"
>
> (a) The EPC contains no positive definition of invention - this was
> *deliberately* done to allow for technological expansion (check the
> Conference proceedings leading up to EPC);

If you read the ten commandments, you also find that no definition of
"righteous doing" is given.  This is probably wise, because it allows some
basic rules to endure over the times and be adapted to new social
conditions.

The concept of technical invention is one way to stay within the limits
laid down by the EPC's Ten Exclusions. It itself is already very flexible,
because it is based on abstractions such as "controllable natural forces",
to which new kinds of natural forces can be added as technology expands.
Nobody has ever pointed out any need for a more flexible definition, let
alone given one that could be both legal and adequate.

EPO definitions such as that of Mark Schar

	Technical Invention = Any practical repeatable solution
	http://swpat.ffii.org/vreji/papri/jwip-schar98/

are neither in line with the Ten Exclusions nor adequate for the purpose
of the patent system.

What the EPO has been doing with the Ten Exclusions of art 52 is basically
to say

- Stealing with a righteous effect is permissible
- Wealth is a righteous effect
- Therefore all stealing has a righteous effect
- In order for stealing to be permissible, there needs to be a
  "further righteous effect", such as transfer of property.
- As soon as we have deleted the outdated stealing exclusion, we will
  stop this silly talk about "further righteous effect", see

	http://www.european-patent-office.org/tws/appendix6.pdf

> (b) The concept of "technical invention" was imported into EPO practice from
> pre-existing German practice but (i) it was arguably wrong to do so (no
> express grounding for it in the Convention), (ii)  unlike German case law of
> the time, its use was limited to dealing with *exclusions* from
> patentability and (iii) it has always been balanced in EPO practice against
> the principle of narrow interpretation of exclusions from patentability
> (which, in turn, follows from point (a));

This is like saying "Our Church has always adhered to a narrow
interpretation of the Ten Commandments".  There is no need to act
righteously, you just have to avoid "stealing as such", which means
"stealing within a closed system without any righteous effect".

> (c) the origin of the "technical invention" approach in German case law can
> be traced to the Red Dove decision of 1969 - however, on close reading of
> that decision, we see that it, in fact, it treats "technical invention" as
> merely a concretisation of the need for "industrial applicability";

Indeed the concept of industrial application was originally another way to
express the same idea.

> (d) therefore, any claim that there is a well-established, clear and
> consistent meaning to the term "technical invention" (even in German case
> law) is incorrect.

The BGH/BPatG caselaw from Dispositionsprogramm to Flugkostenminimierung
with dozens of decision give a clear and consistent meaning to this
concept. Dispositionsprogramm also explains why it is the only workable
concept, and this explanation has only been corroborated by the experience
since Sohei (EPO 1986) etc.

> PS the summary of "what an invention is" that Hartmut gives after the
> "i.e." is to narrow - it would actually render most existing process
> patents invalid.

I checked it on a sample of current EPO patents and found that it renders
about 3% of them invalid.

Using a consistent definition of "righteous" would also render quite a lot
of the hypocrisy of holy men sinful, but what is so bad about that?

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




