McCarthy: solution doesn't need to be technical

[PILCH Hartmut <phm@a2e.de>]

MEP Arlene McCarthy's draft report

        http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0302/

is so bad that one could write endless analyses about it, which then
people don't read.

Here's an extract from a discussion of one of many frivolous
paragraphs of McCarthy's draft report, to give you a short taste:

> Do you know any examples to show what is meant by the "problem/solution
> approach" as it is defined in Amendment 3 by Arlene McCarthy in
> http://www.europarl.eu.int/meetdocs/committees/juri/20030219/488980de.pdf
 
>   Amendment 3
>   Recital 12
> 
>   ...
> 
>   When assessing whether an inventive step
>   is involved, it is usual to apply the
>   problem and solution approach in order
>   to establish that there is a technical
>   problem to be solved. If no technical
>   problem is present, then the invention
>   cannot be considered to make a technical
>   contribution to the state of the art.

Even at the EPO, the traditional method has always been to say that
there must be a

        "technical solution to a technical problem"

I remember this being said even in the EPO's Basic Proposal of
2000/08, which proposed to delete Art 52(2) in its entirety.

So the real meaning of McCarthy's amendment is that a there needn't
be a "technical solution".  

What's more, such methodologies of examination do not belong into a
law.

Note also that the EPO's examination methodologies are logical
nonsense and have been criticised for that even by patent maximalists
such as Ralf Nack, see

        http://swpat.ffii.org/papers/grur-nack00/

who says that the test of technicity is separate from the test of
non-obviousness and mingling the two creates chaos ("Das Chaos ist
nicht mehr zu ueberbieten").

If the EPO can do its job with broken examination methodologies, that
should not bother us, because examining methodologies are an internal
affair of the examining office and what counts is the result.
Imposing such methodologies by law would be inadequate even if the
concerned methodologies were not theoretically and practically broken,
as are those of the EPO.  And, while the EPO's methodologies are bad
enough, McCarthy's copy is even worse.

As usual in CEC/McCarthy patent rhetoric,
laxist proposals are shrouded in restrictive rhetoric form, cf

"A mere computerisation of a non-inventive business method is
not patentable" ==> business methods are patentable. 

"If no technical problem is present, then the invention cannot be
considered to make a technical contribution to the state of the art."
==> Even if no technical solution is present, a patent must be granted.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
140,000 signatures against software patents      http://www.noepatents.org/