Re: [Patents] Greg: German semantics of "technical"

[PILCH Hartmut <phm@a2e.de>]

> The patent system does not have to depend on some consistent philosophical
> model.

It does not need, and in fact can not, be derived from any philosophical
model.

However it should be explained in terms of such a model.

It should not first borrow terms like "technical" or "algorithm" from
philosophical language and then use them in some esoteric and inconsistent
way that allows only insiders to follow the debates.

> However, no legislation should depend on such vague concepts as what
> "technical" means, without also clearly defining what the concept 
> "technical"
> means in the legislative text. Especially when we are talking about
> international treaties (as the patnews article illustrates).

> Using Hartmut's model of "controllable physical forces" is one possible
> model, but it you could also use explicit exception like the legislators
> tried to do in the EPC. In fact the EPC as it is written could have worked
> just fine if there had been the political will to make sure the EPO
> obeyed its limitations.

These limitations imply a concept of invention.
They imply that, to use our previous analogy, saving a child is
categorically different from killing a dog, even if in some cases saving a
child can imply killing a dog.
There is something called "patentable invention" or "technical invention"
which is categorically different from "programs for computers" and other
items of the kind listed in Art 52(2).
If you don't explain how this category of "techical invention" can be
understood and delimited, you will run into trouble sooner or later.
The EPO ran into trouble sooner than the german courts, because, in spite
of its very clear guidelines of 1978, it never bothered to explain what is
a technical invention.

See also

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

> The argument that you need a totally "logical" legislation is
> misguided. This is the same mistake Greg makes with his arguments that
> everything or nothing should be patentable. The benefit of a theory
> based on "controllable physical forces" would be the positive economic
> and social effects.

Laws need to be (1) adequate (2) coherent.
The legislator's perspective is mainly that of adequacy, the law scholar's
and judge's that of coherency.
An incoherent law cannot be adequate because it creates legal insecurity.

From the point of view of the judges and law scholars who developped the
theoretical foundations for art 52, the benefit of this theory is
primarily to assure coherency, stability and predictability for rules
which the legislator stated only in an implicit manner.  Social and
economic effects are not a matter for law scholars to decide about.

What the german tradition did was to explain existing laws from a
theoretical foundation so as to make decisions more transparent and
predictable while observing the wording, systematics and purpose of the
law.  The purpose is presumably to achieve certain desirable economic and
social effects, but for judges this is a secondary or tertiary
consideration.  They are and should be first of all concerned with
achieving a coherent and loyal interpretation of the legislator's will.

This legitimate pursuit of coherency leads to a grounding in logics and
science.  Don't be fooled: the logics and science that Greg pursues sounds
similar but is different. What Greg does is to say that existing laws are
"unscientific" and need to be replaced by his favorite theory, regardless
of whether the resulting rules are compatible with the wording,
systematics or purpose of the present law.

> Whether or not it is the "correct" semantic definition of "technical"
> is not an relevant question.

Indeed.
There is no correct definition of "technical".
Language habits are unimportant for law, as I explained below.

> PILCH Hartmut wrote:
> ...
> > 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
> ...
>
>
>