Re: Another strawman for equal hardware and software patentability

[PILCH Hartmut <phm@a2e.de>]

> Likewise one would be justified in saying many times, patents are not 
> granted
> for software but for inventions.
>
> There is more justification for treating hardware and software similarly and
> equivalently and identically for patenting purposes.

Which is in fact what has always been done and what we are proposing at

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

While the European Commission wants to state explicitely that computer
programs as such are patentable inventions (Art 2a), for us the invention
concept has nothing to do with the question of whether a computer is used
during implementation.  The question is rather whether there is an
invention, i.e. a [new, non-obvious and industrially applicable] teaching
about cause-effect relations of controllable forces of nature.  Any
problem solution that is defined by terms of the universal logical device
(e.g. i/o, network, memory, storage, database etc) does of course not
fulfill the requirement, because the universal logical device is a
mathematical model, and its implementation in hardware is not new.

That of course also does not mean that other purely logical ideas, which
are defined in "hardware" terms other than those of the universal logical
device, are patentable.

A pharmaceutical engineer told me these days about trouble with an EPO
patent on using diamonds for a certain purpose in pharmacy.  The trouble
here is that the physical causalities of this use of diamonds are known
and the only reason for the grant of the patent was the logical inference
that they can be used in pharmacy as well (as they are already in a lot of
other industries).  That of course is a purely logical inference and not a
technical invention.  Again, the criterion for distinction is not whether
something is "implemented in hardware" or not.

Regards.

-- 
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/