[Patents] Re: What is an invention? (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Wed, 1 Aug 2001 12:26:55 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
Reply-To: intprop-l@topica.com
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.
>
> (a) How does this flexibility square with your insistence that the courts,
> EPO, etc. cannot move beyond Dispositionsprogramm?

Already answered in the previous postings:  "controllable natural forces"
is a wide term than can incorporate new technologies.

> Surely all they are doing is responding to a "social condition" which,
> crudely put, is that the majority of the software industry players
> (particularly in the US) want patent protection for their products and
> have persuaded the majority of those in political/administrative/legal
> authority that this is a good thing?

That is not true.
Patent lawyers, not software companies, are the driving force.
In some cases patent lawyers wear a company hat.
This is especially the case in hardware companies like IBM, Siemens, Sun
etc which have always had a patent department.

Companies do not usually form opinions on matters of public policy.
As said earlier: when the mayor sells guns, companies need to make sure
they get their hands on some of the best guns.  But they rarely have an
opinion on whether we should have gun-control or not.

In the hearings conducted in the USPTO in 1994, long after software
patents had become a reality, even representatives of big companies like
Adobe and Oracle expressed themselves firmly against software patents and
some others like Borland and Autodesk also expressed misgivings.  Only
those who had been in the hardware business and were represented by patent
department heads were pro.  And patent department heads are a part of a
community with a certain ideology, which I call the "patent movement".
This ideology has little to do with the interest of the companies these
people represent.

> (b) If you are looking for a "morality" embedded in any patent system or
> want to try to put it there, you will be sorely disappointed (EPC exclusions
> from patentability of immoral and anti-social inventions notwithstanding) -
> it's just an economic mechanism which is bounded, powered and controlled by
> the legal-political-commercial interests of the time.

I was not looking for that, and I didn't imply it by the comparison of the
"Ten Exclusions" with the "Ten Commandments".
But certainly there is a morality:

        ... to promote the progress of science and the useful arts ...

and there is a basic requirement of freedom, especially in the case of
problem solutions in the realm of pure ideas which are independent of
materialisation.

> At one time, the UK patent system had a "catch-all" exclusion
> disallowing patents "prejudicial to the common weal [good]" but that
> has gone the way of the dinosaur: in short, as technology and the
> commercial interests in that technology have expanded, so restrictions
> on the field of patenable inventions have shrunk (example: until 1789,
> process patents were invalid in the UK).

In short: Commercial interests of patent lawyers and their allies in the
industry have superseded freedom interests of the public, at the expense
of the promotion of progress of science and the useful arts.

> > 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.
>
> Legal and adequate to whom and for what purpose?

Legal = allowing a consistent and meaningful interpretation of the law
Adequate = serving the purpose of progress of promoting science and the
           useful arts while imposing minimal restrictions on freedom

> I am confused: at the start
> you talk about flexibility but here you are referring to one solid and
> immutable standard which you have derived from Dispositionsprogramm. As an
> interpreter and linguist, you above all people know that there are shade of
> meaning, that language admits a penumbra of uncertainty: the patent
> attorney's job is to find an interpretation most useful to his client, the
> EPO accepts it because of fee needs/pressure from the Trilateral
> Commission/an inherent drive towards narrow interpretation of
> exclusions/software industry complaints and so on. The environment in which
> the patent system functions has changed and it has responded.

It has however responded only to particular interests, which of course
form the micro-environment in which patent offices operate.

This is no justification for violating the Ten Exclusions and failing to
seek a systematic guidance for decisionmaking that allows staying
well within their boundary.

> > 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
>
> I cannot comment on morality in this context for the reasons I have outlined
> above.

I am not alluding to morality.

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

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