Re: [Patents] "Further technical effect"

[Hartmut Pilch <phm@a2e.de>]

> Subsequently the EPO rationalised the exclusions of Article 52(2) as
> having the common characteristic that they were not technical.

Which is arguably wrong.
At least it is an obligation for the EPO to interpret "technical" in a
very narrow way, so as to conform to Art 52(2).

> This is reiterated in recital 7 of the new directive.
>
> Since then TRIPS has mandated that patents should be available for
> inventions in all fields of technology.
>
> So now the only way to rule out classes of patent applications for
> whatever reasons (eg social, economic, historical, whatever) is to
> declare them 'non-technical'.

Or to declare them 'non-inventions'.
"Technical" has always been a defining criterion for "invention".
If it is not a good criterion, then another one can be found.

TRIPs only says that exemptions from patentability should not be
undertaken on an unsystematic basis.

We never say that technicity is the only possible distinction criterion
and that it should replace the list of non-inventions in Art 52(2).

Only the patent lobby, e.g. McCarthy, says that.

Yet they don't explain what is 'technical'.

We then respond by offering a definition that works, namely

>       "technical field" means an industrial application domain requiring the
> use of controllable forces of nature to achieve predictable results.
> "Technical" means "belonging to a technical field".  The uses of forces
> of nature to control physical effects beyond the numerical

this "numerical" is a bad error, resulting from mistranslation of french.
"numerique" = "digital" !

> representation of information belongs to a technical domain.  The
> production, handling, processing, distribution and presentation of
> information do not belong to a technical domain, even when technical
> devices are employed for such purposes.

and similar, as has been the dominant tradition in the patent system
wherever it attempted a definition.

I'd say: if you want to use the term "technical" at all, refusing a
definition along these lines (or better) is complete crookery.

You can't say that the word "technical" is your delimiting criterion and
then not further define it.

In fact, if defined, it can imho be a very neat criterion, well-proven and
clearer than just about any other legal concept of the patent system.
But that is another point, on which we needn't agree.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/