[Patents] Re: EPO 1978: programs vs inventions (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Wed, 15 Aug 2001 09:09:48 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
Reply-To: intprop-l@topica.com
To: intprop-l@topica.com
Cc: Klaus Hundt <Klaus.Hundt@bibliothek.uni-magdeburg.de>
Subject: Re: EPO 1978: programs vs inventions

> > No, because "data" are not physical entities, and "information" even
> > less so.

> But in the information age and economy that most Americans live in now
> (and the rest the will live in later), information and data are more
> valuable than any physical entity and therefore worthy of protection
> at par with physical entities.

The "valuable ergo worth patenting" conclusion is indeed one of the most
fatal non sequiturs, and I guess it is the central popular error on which
the patent movement is based, the core piece of its misanthropic ideology,
the kind of vulgar thinking that will bring the whole patent system into
undeserved miscredit.

It is like saying "because the man is the most valuable economic good, we
need slavery".

Actually Abraham Lincoln in his days was also faced with a concerted
attempt from slaveholders to construct myths about the historic evolution
of laws, to which he responded:

  The assertion that "all men are created equal" was of no practical use
  in effecting our separation from Great Britain and it was placed in the
  Declaration not for that, but for future use.

Likewise the assertion that abstractions should not be patented was put
into the US patent doctrine "for future use".

The Dispositionsprogramm decision has even more clear words for the
misanthropic "everything that is valuable needs to be ownable" doctrine,
already quoted here quite a few times but apparently not understood by
everybody:

   ... in all cases the plan-conformant
   utilisation of controllable natural forces has been named as an
   essential precondition for asserting the technical character of an
   invention. As shown above, the inclusion of human mental forces as
   such into the realm of the natural forces, on whose utilisation in
   creating an innovation the technical character of that innovation is
   founded, would lead to the consequence that virtually all results of
   human mental activity, as far as they constitute an instruction for
   plan-conformant action and are causally overseeable, would have to be
   attributed a technical meaning. In doing so, we would however de facto
   give up the concept of the technical invention and extend the patent
   system to a vast field of achievements of the human mind whose essence
   and limits can neither be recognized nor overseen.

   ...

   It can furthermore be argued with good reasons that, given the
   unanimity with which the jurisdiction and the legal literature have
   always insisted on limiting the patent system to technical inventions,
   the above reasoning constitutes a theorem of customary patent law.

   Whether we want to postulate such a theorem is however not essential
   for this discussion, because also from a purely objective point of
   view the concept of technical character seems to be the only usable
   criterion for delimiting inventions against other human mental
   achievements, for which patent protection is neither intended nor
   appropriate. If we gave up this delimitation, there would for example
   no longer be a secure possibility of distinguishing patentable
   achievements from achievements, for which the legislator has provided
   other means of protection, especially copyright protection. The system
   of German industrial property and copyright protection is however
   founded upon the basic assumption that for specific kinds of mental
   achievements different specially adapted protection regulations are in
   force, and that overlappings between these different protection rights
   need to be excluded as far as possible. The patent system is also not
   conceived as a reception basin, in which all otherwise not legally
   privileged mental achievements should find protection. It was on the
   contrary conceived as a special law for the protection of a delimited
   sphere of mental achievements, namely the technical ones, and it has
   always been understood and applied in this way.

   Any attempt to attain the protection of mental achievements by means
   of extending the limits of the technical invention -- and thereby in
   fact giving up this concept -- leads onto a forbidden path. We must
   therefore insist that a pure rule of organisation and calculation,
   whose sole relation to the realm of technology consists in its
   usability for the normal operation of a known computer, does not
   deserve patent protection. Whether it can be awarded protection under
   some other regime, e.g. copyright or competition law, is outside the
   scope of our discussion.

Evidently this was also written for "future use".  Now is the time for
patent law experts to stand up against ignorance and misinterpretations of
history and popular errors of the patent movement (such as those
continuing to show up in http://www.ipjur.com/01.php3).

>From my experience I perceived patent lawyers as a crowd with
above-average education and intellectual interests.  Unfortunately they
have usually not received any training to think about these concepts.
The notion of technical invention was developped by limited circles in
some law magazines and then later dismantled before the knowledge could
spread to the mass of patent lawyers.  And before it could spread to the
patent lawyers, some illiterate and greedy black sheep among them already
propagated an ideology that is destroying the patent system.

--
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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