Re: [Patents] "Further technical effect"

[Xavier Drudis Ferran <xdrudis@tinet.org>]

On Fri, May 16, 2003 at 06:29:11PM +0100, James Heald wrote:
> 
> Actually I think the clauses are fairly orthogonal to the Echerer and
> Gebhardt amendments.
>

I did not say they were incompatible. I still don't see they're 
terribly necessary, but I wouldn't vote against them either. 
 
> I don't think these would take anything away from a "controllable forces
> of nature test" (if we can get it);  but I would like something to
> explicitly follow the implication from that and spell out (the most
> importantly) that user interfaces should not be patentable.
> 

The problem is that if we don't get the "controllable...nature" it will be 
difficult to draw a meaningful line to delimit software patents.

> I also think it would be worth explicitly closing the door to make sure
> that there is no possibility that the argument could ever be produced
> that a new software technique which allowed a computer to (almost
> always) solve more quickly in the context of a particular problem might
> ever be interpreted as a 'new teaching about cause-effect realtionships
> when using controllable forces of nature'.
> 

How would you twist it into even looking like such a teaching?.  The
thing that makes a computer useful is that all cause-effect
relationships in using controllable forces of nature are already
solved by the hardware, which presents the programmer with a formal
model of calculation that is safe to assume that will work, however it
does. This allows innovation to focus in mathematics, logics,
organization instead of observation, experimentation and material
prototyping (therefore innovation is much cheaper), and makes more
complex systems possible.

A "software technique" can never provide 'new teaching about
cause-effect realtionships when using controllable forces of nature',
in the same way that a poem can never be a weapon to kill someone.

So I think this is the most clear and straightforward requirement that
a law can make. Now, if what you mean is that whatever the law says,
the EPO may plainly ignore it, then I'll have to admit it looks so from 
history. If  you mean that the courts may also ignore anything in the
law, I'll have a harder time to believe, but who knows. Having  a clear 
law does not solve the problem of ensuring the law  is followed, but it 
must help a little, otherwise we'd have more swpat litigation in Europe 
and nobody would be pushing for this directive.

In other words, I think the counterproposal in ffii.org is necessary,
although not sufficent. I tend to think your proposal is not necessary
nor sufficent, but it is no harmful at all, and not incompatible.

> So I think both clauses would add something new and worth having to the
> Echerer et al Amendment 32 and Gebhardt's Amendment 33.  (Though I
> accept that the first clause could perhaps be rewritten more sharply).
>

The new uses of forces of nature stuff is the sharpest way to rewrite
it that I can think of, but I may be overlooking something, of course.
 
> 
> But I think it is not a bad thing that the clauses would also (IMHO)
> work well even without Am 32 and Am 33.  I think there are MEPs who
> could be convinced to back them as useful amplifications and
> clarifications of Art 52 EPC, even if they do not back the controllable
> forces of nature test.
>

Well the forces of nature test was backed in CULT and by many MEPs in
ITRE.  I don't see why it should not be backed elsewhere. It's a
matter of explaining its importance to MEPs.
 
> On both counts therefore I think they may have something useful to
> offer. 
> 

Well, at least the second one would mean the opinion of those who
lead the research in the field have been properly heard when legislating
on research in the field.