Re: Another strawman for equal hardware and software patentability (fwd)

[PILCH Hartmut <phm@a2e.de>]

---------- Forwarded message ----------
Date: Tue, 10 Sep 2002 16:05:35 +0200 (CEST)
From: PILCH Hartmut <phm@a2e.de>
Reply-To: intprop-l@topica.com
To: intprop-l@topica.com
Subject: Re: Another strawman for equal hardware and software patentability

> >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.
>
> Historically, it has not been necessary that an invention, to be
> patentable, should invoke forces of nature.
>
> Consider Rubik's cube which might have been the subject of a patent
> claim along the lines of 'a product having an external configuration in
> the form of a cube with six equal square faces, each face being
> similarly subdivided into a square array of lesser square tesserae, ...
> with perhaps some more geometrical limitation about three mutually
> perpendicular axes of rotation and edge and corner tesserae ... any
> block of contiguous tesserae extending continuously around any axis
> being rotatable about that axis with respect to the tesserae not
> included in that block'.  That has all to do with logic and nothing to
> do with causes and effects in natural forces.
>
> Or how about the game of Monopoly, when new?

Indeed, both these examples may be great new ideas, but they are not
technical inventions.  In Art 52 EPC, games are even listed among the
examples of non-inventions.

> What about a patent for a novel combination of (known per se) warp and
> weft threads in a woven fabric, giving a novel or enhanced visual
> appearance to the textile product (as in the 'shot' effect of shot
> silk)?

Would this require experimentation with forces of nature or is CAD on
knwon models enough to know for sure that it will work ?

> There are endless possible examples of 'logical' and patentable
> inventions.  Methods of cutting and folding cartons for better
> convenience or economy would be the next ...

They would have traditionally been unpatentable under the german doctrine.
Patent Commentaries such as Benkard are full of such examples.

> It seems to me that your arguments are not to do with software, but with
> a simple wish to confine patents to an arbitrarily limited set of
> manufacturing technologies.

Not arbitrarily limited but limited by criteria which you are apparently
quite well capable of applying and which make economic sense. In fact I
myself quoted an example of a mere logical combination which I found
unworth of patenting.

> Every new technology brings its own new frontiers and expands the range
> of possible further invention.

And often also the range of possible mental activities that do not fall
into the realm of technical invention.  Pencil and paper, the abacus, the
calculation machine, the universal computer etc all provided better and
better prolongations to the human mind.  And, as Jim Warren of Autodesk
stated very nicely in his testimony

        http://swpat.ffii.org/archive/quotes/autodesk#94

the attempt to extend crude monpolies (with an unlimitable breadth of
claim, which is theoretically inacceptable but in practise seems to be
viable in the sphere of technical invention) into the sphere of the mind,
just because the mind has more and more tools coming to its aid, is in
fact infuriating to all people who know what a computer is.

> The long ago invention of fire, levers and screws did this.  The
> thermionic valve did this.  Data processing machines are doing this.

So what?

Maybe long ago the USPTO or other patent offices were wrong in granting
patents for purely mental achievements such as the rubix cube.

Now the universal computer may be forcing people to think more about it.

And, delightfully, may people like you are showing that they are actually
getting the point, even if it is still goes a little to much against
established habits of thinking that any idea that is of commercial value
needs to be "protected".  These habits roughly worked a few decades ago,
and even when people didn't distinguish as clearly as Benkard's commentary
teaches them, such failure to distinguish did not cause a great uproar.
But it is has been causing it now for the last ten years, and at least
those patent lawyers who are not directly living on software patents might
want to come back to the depth of thought that the patent culture in
Germany and some other places had reached not too long ago.

-- 
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/
.

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