Re: [Patents] Question

[PILCH Hartmut <phm@a2e.de>]

> Is it legal to patent a natural process, i.e. a process that can be
> observed in nature ?

A process that can be observed in nature is a discovery according to art
52 EPC and therefore not a patentable invention.

>   where is the novelty, where is the inventive step ?

Such a process is novel, if it has not been described yet.

Such a process is non-obvious (i.e. has an inventive step) if the ordinary
person skilled in the art would not normally find it[1].

But since it is not an invention, it cannot be patented.

However according to the EC/BSA proposal it can be patented because the
patentability is in effect abolished.

Even without this proposal, patent courts and offices have, not only by
using the "as such" clause, found ways to present discoveries as
inventions and patent them.  This is because even without this directive
proposal they have not taken the invention concept seriously for quite a
while but rather prefer to just look at the claim language, leaving the
decision whether something is an invention or not entirely to the
applicant's patent lawyer.

This is in part due to laziness of thinking, a product of inbreeding
within one organisation.  Rather than finding out what the alleged
invention is and formulating it, as the BGH did beautifully in the
Dispositionsprogramm and Walzstabteilung decisions, they want to rely on a
formalism that allows them to stop thinking.  They don't want to judge an
invention but a claim, i.e. a secondary result of legal formalisms.

At the EPO also the non-obviousness (inventive step) test has been
hollowed out by formalisation. This formalisation is btw also a part of
the EC/BSA directive proposal.

This proposal not only fails to raise the threshhold of technicity and
non-obviousness.

By enacting esoteric EPO formalisms, the results of long-term intellectual
decay of a single organisation, into a general law, the EC/BSA proposes
to force these results onto the public, making the law inaccessible to
rational discussion, an obstacle to any attempt of rational reform of the
state-within-the-state which the patent movement constitutes, and an
obligation to

- patent all ideas (when forulated in practical terms or in the
  language of the standard logical device)
- put up forever with the lowest non-obviousness standard in the world

I have analysed this also under

        http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/