From phm@a2e.de  Sun Aug 19 19:41:59 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Sun, 19 Aug 2001 20:41:59 +0200 (CEST)
Subject: [Patents] reinterpreting EPO swpat as teachings of materialisability
Message-ID: <Pine.LNX.4.33.0108192035420.23533-100000@mulix.oas.a2e.de>

---------- Forwarded message ----------
Date: Sun, 19 Aug 2001 20:01:40 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
Reply-To: intprop-l@topica.com
To: intprop-l@topica.com
Subject: Re: protection needs beyond copyright?

> 	[...]
> > - the way solutions are found (reasoning vs experiment)
>
> But there must always be some reasoning guiding any experiment. Some
> thinking that could eventually be formulated in the form of algorithms has
> to be embodied in every device that controls tangible things in the light
> of our knowledge of nature.

right.
A machine is always a combination of physical causality with logical
functionality.
At least this model seems to work well.

> How much of such reasoning would you abstract away from a given patent
> application in determining the validity or equivalents of any patent
> based on the application?  More than the non-inventive and
> non-industrially applicable reasoning?  Other criteria?

I would look for a teaching of physical causality and abstract away any
abstract rules, i.e. those which are not directly connected to the
physical causality.  E.g. the recipe of mixing together substance A and
substance B in a certain way to achieve a physical result of C would not
be deemed to be an algorithm but a recipe containing physical components,
without which there is no physical success.

The difference between such "recipes" (in fact a term used in old patent
law doctrines) and algorithms is that the algorithms function
independently of any implementation.  They are part of an axiomatic system
and verified in that system.  The recipe is verified by the successful
obtainement of result C from substances A and B.  It is therefore not an
algorithm.  It could be seen as an algorithm if it logically follows from
a known model of matter, but then again you don't get the patent for the
algorithm but only for the teaching that this particular recipe does in
fact work like the algorithm.  Preferably there should be some distance
between this teaching and the algorithm (derived from an known reliable
model), otherwise one might want to reject the claim as obvious.

In a lax practise like that of the EPO, we could still allow software
patents, but restrict their validity to the (fairly obvious) teaching that
a particular physical process does in fact work like the algorithm, and
thereby declare that those who execute this physical process by running a
computer program do not infringe since they did not apply the teaching but
only a combination of non-invention (computer program as such) and prior
art (computer).

This would be extreme intellectual acrobatery, but I think it is perfectly
reasonable and legal and can be used as a smooth way out of the current
European software patent mess.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
85000 signatures against software patents         http://www.noepatents.org/

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