Greg: German semantics of "technical"

[PILCH Hartmut <phm@a2e.de>]

Greg's Patnews has a nice analysis about the semantics of the german word
for "technical" ("technisch") and its semantic affinity to the physical
world.  I have explained the same thing here before and made some
observations about the lack of differentiation between mind and matter
which is pervasive in the anglosaxon thinking traditions as they are
reflected in the development of the english language.

However this should also not be over-evaluated.  The meaning of a term
such as "technical" does not necessarily depend on thinking habits.  If
the concept is to be used at all, it must be rooted in proper
philosophical thinking that is rooted outside the patent system and
demonstrated to be productive there.  As Donald Knuth has remarked (see
the quotation in http://swpat.ffii.org/vreji/cusku/), legal concepts are
not helpful when they are based on arbitrary distinctions that have no
meaning or run counter to state-of-the-art reasoning.  Knuth compares the
CAFC's distinction between "mathematical algorithms" and "technical
algorithms" to the medieval church's decrees about the heliocentric
system.  Kolle 1977 and the Dispositionsprogramm decision say the same:
there is only one mind-matter border that can be used as a delimiting
criterion, and anything else leads into meaningless jungle of words. The
term "technical" must either refer to the sphere of "controllable physical
forces", or it must be discarded.  Keeping it up for political purposes is
just not serious, no matter how the word happens to be used in current
german or english vernacular language.

>     --  AN EXPLANATION OF THE GERMAN SEMANTICS OF "TECHNICAL"
>
> Greg,
>
> I have read with interest your discussions of the requirement for a
> "technical effect" by the European Patent Office.  I don't have an answer
> to the debate, but I might have an insight into the source of some of the
> problems.
>
> I'm in the relatively unusual position of being a non-German patent
attorney
> living and working in Munich.  As you'd expect in Munich, there are very
> many native German-speakers at the EPO.  Although most European patent
> applications are filed and prosecuted in English, German is used
frequently
> as a common language by EPO Examiners and members of the Boards of Appeal.
>
> In German, the word "technisch" has the meaning of "relating to Technik
> (technology)" and "Technik" (according to my German dictionary, in
> translation) is "the totality of all means which make nature usable by
> people on the basis of the knowledge and application of its [nature's]
> laws".  So, from a German perspective, "technical" always implies the
> natural sciences or applied natural sciences.  This concept is very clear
> to all the native German-speakers that I have discussed this with.
>
> In English, on the other hand, the word "technical" generally has the much
> broader meaning of "relating to a particular field of activity", without
> limitation to the natural sciences.  The corresponding word in German is
> "fachlich", not "technisch", according to a linguist friend of mine.
>
> It seems to me that in German, a "technishe Wirkung" (technical effect) is
> probably a clear limitation to an effect in a field relating to the
natural
> sciences or applied natural sciences.  In English it's not, because it
> doesn't exclude other "technical" fields like mathematics or economics.
> It may be that when you argue that "technical" is no limitation, half the
> EPO don't understand what your problem is, because they are thinking
> "technisch".
>
>                                       ====
>
> An interesting explanation, and one that clearly illustrates the future
> problems of global patent harmonization.  American (and now Asian) patent
> law has expanded to include the ideas and processes of the growing service
> around the world (software and business being two enormous services).
> German/European patent law seems to be resisting this expansion, maybe
> because of American dominance in the very areas the global patent system
> seems to be pushing into.  In a sense, the European reluctance to so
> expand their patent system seems to be some sort of intellectual
> "tariff".  For hamonization, one side is going to have to change their
> minds.

Harmonisation can also work by finding common ground, such as:

Nobody needs to apply the same patentability standards as the other.
Each can examine all kinds of patents according to all kinds of standards.
But these standards should be formulated on the basis of serious
philosophical reasoning rather than idiosyncratic PTO wooden language.

The German patent tradition of 1877-1978 has imho some very inspiring
models to offer.  There is of course no necessity for everybody to learn
this classical german way, let alone harmonise on it. But it shows that
wooden language is avoidable and that patent law can be based on
state-of-the-art reasoning.

-- 
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/