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

[Mattias Lundström <mattias.lundstrom@digitalroute.com>]

PILCH Hartmut wrote:
> > 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.

Definitely not inconsistent.

"Esotheric" is however a fairly common practice in law, where you get large
bodies of theory that specify the formal meaning of specific terms. Sometimes
the meaning is not fully consistent with the everyday use of the words.

I agree with you that this should be avoided if possible, since it invites
misunderstandings and communication failures.

> > 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.

I agree.
The EPC should define how the concepts "technical", "invention" and
"technical invention" should be interpreted and it does not. This opening
has then been used to further the political agenda of the EPO.
I still maintain that if there had been the political will, the EPOs misuse
of power could have been stopped based on the EPC in its current form.

...
> 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.
...

There are unclarities, yes. But it is obvious that "programs for computers"
are NOT included (since this is explicit). Which should be enough from the
limited perspective of software patents.

...
> 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.

Agreed.
I would add clarity/predictability, since otherwise the legislator is (in
practice) giving the judicial body the power of creating laws (by
interpretation of unclear statutes).

...
> 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.

Good point.
There is a critical difference between arguing about how the laws should
have been written and arguing about the interpretation of existing law.

-- Mattias