Amsterdam impressions

[PILCH Hartmut <phm@a2e.de>]

> >>Whatever technology was thrown into the patent to get it issued, any
> >>novelty here is solely in the financial calculations on the futures
> >>and options.
>
> >Interesting that even Greg A. distinguishes between "technology" and
> >"financial calculation".
>
> Let me restate for those reading this who aren't adults:  Whatever
> electronics technology was thrown into the patent to get it issued,
> any novelty here is solely in the financial technology on the futures
> and options.
>
> And if this is still confusing use of language, that is the very point
> of the State Street decision here in America - you can't drawn clean
> lines to then use those lines to a priori reject entire classes of
> patents.

If clean enough lines can't be drawn, then the consequence would have to
be to abolish the patent system as a whole.

> It is much more objective to reject on lack of novelty grounds, or
> lack of providing a fully enabling disclosure grounds (though slightly
> lesser objective on the obvious/inventive-step grounds).

Even if this was more objective, it would still not be acceptable.

The same has been said by Newell in his reply to Chisum in 1986:  Chisum
(who argued that all algorithms must be patentable for consistency
reasons) may have solved one inconsistency, but he opened up several
others.  If "the models are broken" (Newell's title) then it is up to the
patent people to either fix them or wait until external forces build up
and scrap their entire system.  Time has already run out.  Chances for
reform won't be available much longer, if at all.

> And whoever said at Amsterdam that I suppled them with 500 papers,
> tons of prior art, to kill a patent, is not someone I have ever
> worked with.  I suspect you just made up that exaggeration, since
> it is a silly lie if you think about it.

Several participants in Amsterdam said that.  Maybe "500 papers" was just
as figurative as "tons of prior art".  The important point is that in the
mentioned cases you supplied lots of documents but none that was close
enough to overturn the patent in question.

> Someone pointed out that the GB patent numbers I supplied were to
> published patent applications, not issued patents.  It would be
> nice if the big world patent database WIPO maintains made it easier
> to more quickly distinguish the two types of patents.

I also overlooked the difference between A1 and B1 two years ago, but
I am quite surprised that this can still happen to someone like you.

The patent system is of course governed by esoteric language conventions,
and this is only becoming worse over time.  I can still see no trend of
reversal and opening up.  The CEC/BSA directive proposal makes the rules
of granting patents even more esoteric, even further removed from any
possibility of public discourse or public scrutiny, in fact so esoteric
that even within the patent community only a minority can make sense of
them, and even that minority is caught in whacky thinking which is hardly
communicatable.

See

        http://swpat.ffii.org/analysis/inflation/

for a discussion of this in-breeding tendency,

        http://swpat.ffii.org/papers/eubsa-swpat0202/

for a discussion of the esoteric concepts of the CEC/BSA directive
proposal and

        introduction to patent office doublespeak
        http://swpat.ffii.org/players/uk/#duobl

        Stealing with a Further Ethical Effect
        http://swpat.ffii.org/analysis/epc52/moses/

for a quick impression of the intellectual and moral degradation that can
result from this kind of in-breeding.

Someone at the meeting in Amsterdam referred to a fantasy novel series
called "Disk World" in order to criticise Ralph Nack's approach.  The
"Nack doctrine", as it was called, can also be found in the MPI part of

        http://swpat.ffii.org/papers/bmwi-fhgmpi01/

It says that the term "technical" must be deducted from an analysis of
legal traditions rather than from a "pseudo-scientific distinction between
mind and matter as attempted by the german courts in the 70s".

The planet of Disk World is disk-shaped, with a high mountain in the
middle where the divine source of ultimate wisdom resides.  Rather than by
the 4 forces of nature, Disk World is governed by the 4 forces of the
mind, and the science of Disk World is called "empirical theology".   It
consists in climbing the mountain and testing the divine source of
ultimate wisdom.  From reading and listening to much of the currently
dominant patent literature I get the impression that the EPO's Technical
Boards of Appeal are the Divine Mountain, that patent law scholars,
especially those at the

        Max Planck Institute
        http://swpat.ffii.org/players/mpi/

are engaged in empirical theology and free to implement whatever the
divine voice says, even if it means deciding that pi = 3.0 and that
information is a "5th force of nature" or that some algorithms are
mathematical while others are technical etc.

It was nice to see in Amsterdam that outside scholars from other
disciplines don't take this kind of reasoning seriously.  The problem
however is that the patent juggernaut is still marching on its own without
any need for recognition from the outside.

Even the CEC representative at the meeting said "We haven't studied the
economic impact of software patents, because no study is needed.  We are
only codifying the status quo ... The EPO is an unaccountable organisation
and we need to transfer its power to the EU.  That is why we need a
directive."  When asked further questions, an EPO representative sitting
beside him gave the answers and very self-consciously claimed that "we are
currently rewriting the directive proposal so that it fits the EPO
practise more closely.  Our solution isn't controversial.  This directive
will get through the parliament much more quickly than the biotech
directive."  Indeed the EPO people are reworking the directive on behalf
of the CEC in collaboration with the patent departments of the various
european governments which are represented in the "IP and patents working
group" of the European Council.  These departments are of course
colleagues who are sitting in the same European Patent Organisation, i.e.
the board of the EPO.  The EPO colleague also said that the EPO as been
flying without a pilot's license and now needs to get one from the EU.
This is in fact the deal:  formal transfer of some power from Munich to
Brussels in return for a pilot's license.  It was also mentioned that the
European Court of Justice (ECJ) needs EU law in order to be able to handle
patent cases.  However, after some rounds of dialogue with the CEC/EPO
people it turned out clearly that the Directive Proposal does not serve
europeanisation, since that will be achieved by the Community Patent,
which seems to be very close to realisation.  The only purpose is in fact
the pilot's license.  Which again is obtained by esoterisation: pushing
unintelligible and inconsistent EPO idiosyncrasies into the law which
would never have a chance of getting in there through a properly
functioning national democratic system.

The EU Commission's urge to grab power from Munich is understandable and
could even be considered legitimate.  But they are chosing the wrong
allies.  Relying on oligarchies is very short sighted and can ruin the EU
project.  A lot of legislative crap has already accumulated in Brussels
and the currently waiting piece is a particularly crappy one.  I wonder
how long the CEC can still afford this.  I don't think that their power
base is so rock solid.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/