[Patents] Re: Stalin & Software Patents (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
Date: Sat, 25 Aug 2001 23:12:20 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
To: Raible <raible@z.zgs.de>
Cc: "epo@mlist.austria.eu.net" <epo@mlist.austria.eu.net>,
     Klaus Hundt <Klaus.Hundt@bibliothek.uni-magdeburg.de>
Subject: Re: Stalin & Software Patents

Thanks to Mr. Raible's kind permission, his nice little text can now be
found on

        http://swpat.ffii.org/stidi/epc52/stalin/

Difficile est satiram non scribere -- another piece of the sort is just
by its side:

        http://swpat.ffii.org/stidi/epc52/moses/

Here are the main excerpts of this unfinished piece.
Is anybody interested in extending it?

-----------------------------------------------------------



Moses, the Ten Exclusions from Patentability and "stealing
             with a further righteous effect"

Basic laws of human civilisation often take the form of the
Ten Commandments: Thou shalt not ... Further examples are:
   the rules of Buddhists, the human rights catalogue in
    constitutions of modern states and ... the list of
  exclusions from patentability in Art 52 of the European
    Patent Convention. In all these cases, the list of
 exclusions is incomplete. In order to abide by the rules,
 it is not sufficient to literally observe the exclusions.
   Literal interpretation may lead to contradictions or
   phariseism. In order to really guide practise onto a
 law-abiding path, a theory of righteousness is needed. In
the case of patentability, this is the theory of "technical
    invention". Such a theory is not made for eternity.
   However, while paradigms shift and old testaments are
replaced with new testaments, the basic rules of exclusion
should endure, and it is the job of the high-priests of the
 system to find an appropriate theory to support them. Let
us see how the guardians of the European Patent System have
   done their job compared to those of the successors of
                          Moses.

...

+---------------------------------------------------------+
| The Ten Exclusions and the |  The Ten Commandments and  |
| Technical Board of Appeal  |  the Council of Holy Men   |
|----------------------------+----------------------------|
| invention = technical      | merit = righteous deed     |
| teaching                   |                            |
|----------------------------+----------------------------|
| technical                  | righteous                  |
|----------------------------+----------------------------|
| teaching                   | deed                       |
|----------------------------+----------------------------|
| patent                     | blessing                   |
|----------------------------+----------------------------|
| worthy of patenting,       | worthy of blessing,        |
| patentable                 | blessable                  |
|----------------------------+----------------------------|
| computer programs are not  | lying is not blessable     |
| patentable                 |                            |
|----------------------------+----------------------------|
| thou shalt not attempt to  |                            |
| obstruct thy neighbor's    | thou shalt not desire thy  |
| work of publishing and     | neighbor's wife, house and |
| using his own copyrighted  | what is his.               |
| programs.                  |                            |
|----------------------------+----------------------------|
|                            | If all lying, stealing,    |
| If all computer programs   | killing etc was            |
| or mathematical methods    | unblessable, someone could |
| were unpatentable, someone | argue that even in a       |
| could argue that chemical  | situation of defending my  |
| processes could become     | neighbor against a         |
| unpatentable as soon as    | unrighteous violent        |
| they are controlled or     | aggressor I need to        |
| described by computation   | observe rigid rules with   |
| rules. Therefore the       | the inevitable result that |
| legislator has made it     | the unrighteous aggressor  |
| clear that we have to look | kills me and my neighbor.  |
| whether the idea to be     | Therefore the Lord has     |
| patented is computer       | made it clear that we have |
| program as such or a       | to look whether the act to |
| technical invention (e.g.  | be judged is an act of     |
| chemical process) which    | lying as such or a         |
| incidentally involves a    | righteous act which        |
| computation rule.          | incidentally involves a    |
|                            | lie.                       |
|----------------------------+----------------------------|
| A computer program with a  | Stealing with a righteous  |
| technical effect is not a  | effect is not stealing as  |
| computer program as such.  | such.                      |
|----------------------------+----------------------------|
| I want a patent for this   | I want a blessing for this |
| programming solution,      | bank robbery, because it   |
| because it is not a        | is not robbery as such.    |
| program as such.           |                            |
|----------------------------+----------------------------|
| The patent is granted,     | The blessing is given,     |
| because programs with a    | because roberries with a   |
| further technical effect   | further righteous effect   |
| are not programs as such.  | are not robberies as such. |
|----------------------------+----------------------------|
| All computer programs      | All stealing, when         |
| executed on a technical    | perpetrated by a righteous |
| device (computer) have a   | person, has a righteous    |
| technical effect.          | effect.                    |
|----------------------------+----------------------------|
| In order for the program   | In order for the stealing  |
| to be patentable, there    | to be blessable, there     |
| needs to be a further      | needs to be a further      |
| technical effect, such as  | righteous effect, such as  |
| an improvement of          | an improvement of the      |
| efficiency of using the    | ability of the righteous   |
| computer.                  | person to perform          |
|                            | righteous acts.            |
|----------------------------+----------------------------|
|                            | The Holy Council explains  |
| EPO explains how to patent | why monks and nuns no      |
| business methods under Art | longer need any strange    |
| 52 EPC:                    | rhetorics in order to      |
|                            | justify the fulfillment of |
|     The only apparent      | their most human desires:  |
|     reason for             |                            |
|     distinguishing         |     The only apparent      |
|     "technical effect"     |     reasoning for          |
|     from "further          |     distinguishing         |
|     technical effect" in   |     "clerical effect" from |
|     the IBM Computer       |     "further clerical      |
|     Program Product        |     effect" in the Abbey   |
|     decision was because   |     Celibacy decision was  |
|     of the confusing       |     because of the         |
|     presence of "programs  |     confusing presence of  |
|     for computers" in the  |     "sexual intercourse"   |
|     list of exclusions     |     in the list of sins    |
|     under Article 52 (2)   |     under Article 52 of    |
|     EPC. If, as is to be   |     the Monasterial        |
|     anticipated, this      |     Catechism. If, as is   |
|     element is dropped by  |     to be anticipated,     |
|     the Diplomatic         |     this element is        |
|     Conference, there will |     dropped by the next    |
|     no longer be any basis |     Episcopal Conference,  |
|     for such a             |     there will no longer   |
|     distinction.           |     be any basis for such  |
|                            |     a distinction.         |
|----------------------------+----------------------------|
|                            | When the EPO, in collusion |
|                            | with its large corporate   |
|                            | customers, steals the      |
|                            | copyright property of      |
| When programming solutions | thousands of programmers   |
| are awarded a patent,      | and small companies, this  |
| there should be a further  | theft can receive a        |
| technical effect, such as  | legislative blessing from  |
| making a computer run      | the European Commission,   |
| better and faster.         | provided that it has a     |
|                            | further growth-stimulating |
|                            | effect, such as creating   |
|                            | new markets for patent     |
|                            | experts.                   |
+---------------------------------------------------------+

....

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