[Patents] More on why business methods are technical (fwd)

[phm@a2e.de (PILCH Hartmut)]

> It seems to me that the only agreement reached is that there are ways
> to draw lines in the technical world (ranging from invention of the
> wheel to seduction techniques, for example).

Not quite.  Agreement seems to have been reached on the following
statements:

- if technology is the application of science, anything useful (ranging
  from wheel to seduction) is technology
- EPO attempts at twisting the term "technical" to serve temporary
  political needs will backfire in the long run, as will any lie.
- there is one major line of separation between both sciences and
  related technologies, namely whether they deal with controllable
  physical forces.  Thus, under the given legal framework, we can choose
  between
  (1) patentability of all useful processes/methods or
  (2) patentability of teachings on how to use controllable physical
      forces to cause a success
- Option 2 seems to be hidden behind EPO attempts at drawing a limit
  (e.g. Pension Fund System) as well as behind some ill-fated attempts
  of US courts in the past.  Yet experiences such as that of the BGH
  show that a somewhat more consistent way of line-drawing is possible.
- The basic question is whether we want to limit the patent system to
  its home-base of physical innovation or allow it to cover all
  economically important areas of innovative activity.
- It is up to Europe to make a choice based on social and economic
  utility.

Bernard and some others always stress the last point, demanding that
utility of the system should be the only value on which our choice is
based.  While this is true, there are secondary constraining factors such
as those of legal systematics, which limit our range of viable choices.

So far the problem had always been that Greg and others did not
acknowledge the possibility of drawing a line between the physical and the
logical and said that anyone attempting to draw that line had a hidden
agenda of abolishing the patent system.  Thus they argued that although
the social utility of the whole system seems questionable, secondary
constraints force us to accept unlimited patentability, leaving patent
examination and "patent quality" as the only serious subject left to be
discussed.

It seems like an unbelievable breakthrough that Greg or anyone else from
the pro swpat camp would acknowledge the possibility of distinguishing
innovations based on whether they use "controllable natural forces".  So
far no paper from the European Commission's GDIM or the EPO ever mentioned
this possibility.  It has always been a neuralgic point, a taboo.  Horns,
Lutterbeck and other authors of government-ordered pro swpat studies made
a long way around this point and instead tried to impress people with
rhetoric about "being realist" and "modern inventing".

The reason for this is quite simple:  all the alternatives offered to the
traditional line-drawing are unconvincing.  They are either ridiculously
deceitful, such as the

        antics of the EPO
        http://swpat.ffii.org/stidi/epc52/moses/

or they offer a quasi-utopian solution, such as solving the examination
problem, which nevertheless still more or less collides with important
constitutional principles, known e.g. from the German Basic Law as

- human dignity is untouchable (vs "mind = matter")
- general freedom of action (Allgemeine Handlungsfreiheit)
- freedom of opinion, expression, information
- freedom of choice of profession (vs artificial
  concentration/monopolisation)
- freedom of setting contract conditions (vs Code is Law)

These freedoms again have their limits, but these must be carefully
justified by public interest.  The failure to draw a line is no
justification.

--
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
90000 signatures against software patents       http://www.noepatents.org/