Re: [Patents] "Further technical effect"

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

El Sat, May 17, 2003 at 11:01:41AM +0100, James Heald deia:

> 
> Okay: here's how a judge that really *wanted* to grant a software patent
> might parse it:  the computer is a system which is an application of
> "controllable forces of nature"; the program is a cause; the result of
> the program as mediated by the computer is the effect; and if that
> effect was more than just "the program completed", ie if instead it was
> "the program completed *more quickly*", this could be seen as an effect
> above and beyond the normal functioning of the computer.
>

It is debatable whether the program is a cause, but anyway, it is certainly 
not a force of nature. There is no _new_ cause-effect relation between 
forces of nature, unless the computer was not known before. 

"the program completed more quickly" is not a complete statement.
"the program completed more quickly than what?". Than another program?.
This tells nothing. There are always infinitenly many programs that 
complete less quickly that any given one. Than the program in another 
computer?. Well, maybe there was some invention in the  computer, 
maybe not. You are applying the "futher technical effect" doctrine,
not the forces of nature criteria. Maybe the problem is you or I 
forgot the "new" in the forces of nature criteria?.

> Note that I'm not saying this is how the test *should* be interpreted --
> it definitely isn't.  But I'm saying it is how the test *just might* be
> interpreted, especially by a judge in a national jurisdiction where the
> history of the test was not familiar, and especially if that judge
> wanted to justify a particular result.
>

Yes, I'm arguing there is no such rational interpretation possible.  Of
course humans don't have to be rational, but then there is no point in
having laws at all.
 
> It is heartening to know that under German caselaw an increase in speed
> or efficiency is not enough to differentiate a "computer-implemented
> invention" apart from a "computer program as such"; but currently under
> UK caselaw it is.
> 

I didn't know UK caselaw used the term "computer-implemented invention". 
God forbids me to dare questioning the wisdom of UK courts, but anyway, 
I'm an atheist, an EU citizen and a programmer. And I know there is 
absolutely no sense in pretending a computer program may have "further 
technical effects" beyond what usually happens in a computer. Such 
"further technical effects" would not be an invention, just a hardware 
failure. If you accept a program is "not as such" when it improves 
efficiency or security compared with another, then you are saying 
all computer programs are "not as such", i.e. you choose to ignore 
EPC52.2c.

> One might also (just about) argue, even if the program was known, that
> if the exact data was not known in advance, then the efficiency (eg of a
> data-compression system), or the speed (of certain numerical
> algorithms), might still be a matter for experimentation.
> 

No. Experimentation means observing nature to see whether it verifies 
some formal theory or to what extend. There is no experimentation 
when you simply check the outcome of a formal theory, i.e. when you 
apply an algorithm to data. This is computation, no matter how praiseworthy
this computation may be.

With your hipothetical definition of experimentation a Eratostenes cribe
(I'm not sure of the English name) would be an empirical method of 
finding prime numbers. This is merely abuse of language. 


> > > 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.
> >
> 
> Just to clarify: it was *my* first suggested clause that I admit may not
> be particularly good and could stand re-writing, rather than Echerer's.
>

I don't know if I was clear. I mean that once you rewrite your first
sugegsted clause, or possibly after some interations of rewriting, 
you would end up with the new uses of forces of nature criteria.

> I do still think that as well as stating the abstract principle
> ("controllability / forces of nature"), it would be a good and useful
> thing to have clauses in the directive recitals which make absolutely
> clear what that principle implies for a non-exclusive list of certain
> more practical down-to-earth examples.
> 

Yes. No problem with that. Even specific patent examples could be added. 
I only meant it is not enough to substitute the criteria with those clauses. 

> I would particularly like to see on-screen user interfaces (or the
> "methods of interaction between human beings and computers" as the
> professors put it) explicitly declared not patentable.

That addition would do no harm.

-- 
Xavi Drudis Ferran
xdrudis@tinet.org