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- From: PILCH Hartmut <phm@a2e.de>
- To: patents@aful.org
- Subject: technology definition amendments
- Date: Fri, 27 Jun 2003 20:52:00 +0200 (CEST)
amendment
"technical contribution" means "technical contribution", also
a contribution to the state of called "technical invention" or
the art in a technical field "invention", means
which is not obvious to a a contribution to the state of
person skilled in the art. the art in a technical field.
justification
The Commission text abolishes the invention (technical contribution)
test by merging the "invention" (technical contribution) test with
the "inventive step" (non-obviousness) test, thereby weakening both
tests, deviating from Art 52 EPC, and creating practical problems,
see Justification in the Amendment of 4(2).
amendment
"Technology" in the sense of
patent law is applied natural
science.
justification
The Commission text shift the question of what is a patentable
invention to the question of what is "technology" and then leaves that
question unanswered. The rough definition given here corresponds to
the worldwide common understanding of the term, implicitely even at
the EPO today. This understanding should be made explicit for the
purpose of clarification.
amendment
"Technology" in the sense of
patent law is "use of
controllable forces of nature".
justification
The Commission text shift the question of what is a patentable
invention to the question of what is "technology" and then leaves that
question unanswered. The definition given here is founded in generally
acknowledged concepts of the philosophy of science (empirically
observable "4 forces of nature" versus information gained by
abstraction therefrom, "controllable" meaning that deterministic
control must be possible, which excludes social and aesthetical
phenomena). It has been in wide use throughout Europe, East Asia and
other continents. In the wake of recent extensions of patentability
the definition has been cited less often, but it still constitutes the
implicit or explicit understanding of what "technology" means, even in
a large part of the EPO caselaw.
amendment
"Technical" in the sense of
patent law means "concrete and
physical".
justification
The Commission text shift the question of what is a patentable
invention to the question of what is "technical" and then leaves
that question unanswered. The rough definition given here
corresponds to the worldwide common understanding of the term,
implicitely acknowledged througout the patent jurisdiction,
including the EPO, until this day. This understanding should be made
explicit for the purpose of clarification.
amendment
An invention in the sense of
patent law, also called
"technical invention",
"technical teaching",
"technical solution" or
"technical contribution", is a
technical solution to a
technical problem.
justification
This is a common EPC doctrine which has been regularly used by most
patent courts, including the Technical Chambers of Appeal of the
EPO.
amendment
An "invention" in the sense of
patent law, also called
"technical invention",
"technical teaching",
"technical solution" or
"technical contribution", is a
teaching of plan-conformant use
of controllable forces of
nature to immediately, without
mediation by human reason,
achieve a causally overseeable
result.
justification
This is a frequently used definition, as used by the German Federal
Court of Justice in its "Anti-Blocking System" decision of 1980. It
allowed the court to accept a patent for a computer-controlled
anti-blocking system while rejecting a patent for more abstract
computing problems such as determining optimal lengths of rolling rods
or optimal distribution of air-plane fuel based on flying distances.
Without such a distinction, "2 + 2 = 4" would be a mathematical method while
"2 apples + 2 apples = 4 apples" would become a "biotechnical invention".
amendment
An invention in the sense of
patent law is a "solution to a
problem by use of controllable
forces of nature".
justification
The Commission text shift the question of what is a patentable
invention to the question of what is "technical" and then leaves
that question unanswered.
There is a tacit consensus even at the EPO that "technical" it means
something like "concrete and physical". More precise definitions
along these lines have been worked out by various patent
jurisdictions. The concept of "forces of nature" and the dichotomy
between material phenomena and axiomatic systems is comonplace
philosophy of science, routed in a general consensus outside the
patent system.
In combination with the "problem and solution approach" which is
used both by the EPO and many national courts, it follows that
forces of nature must be an essential element not only of the
problem but also of the solution (invention = technical solution to
a technical problem). E.g. a computer-implemented method for
calculating the optimal lengths of rolling rods would not be a
"technical invention" because "the problem is already solved at the
level of reasoning, before, during its non-inventive implementation
on known equipment, forces of nature are used". In an anti-blocking
system this may be different, and a chemical reaction would usually
be a technical invention, because the chemical cannot be obtained by
calculation, and the forces of nature do not obey chemical
equations.
Without such a distinction, addition of numbers might not be
patentable, but addition of apples would become a "biotechnological
invention", and a prior art search would have to be conducted.
Ever since the 1960s, many patent professionals have attacked the
concept of "technical invention" as "antiquated", saying that
"modern high-tech innnovation no longer concentrates on controlling
forces of nature". Indeed modern innovators like to solve problems
at the level of abstraction (software) wherever that is possible.
They know very well why they prefer software solutions to hardware
solutions: because unlike forces of nature, abstract logic is easy
to control. Software ideas are easy to develop, and they can be
neatly organised into complex products, composed of thousands of
simple ideas, each of which could be patented. This creates a
paradise for corporate patent departments. By transferring their
past success experiences into the new world of high-tech, they get
the best of both worlds: light-weight innovations "protected" by
heavy-weight monopolies. The desire is understandable, but by no
means "modern". Copyright is sufficient and well-adapted for the
light-weight world of logical creations. Copyright is modern.
We recommend reading of the "Disposition Program" decision of the
German Federal Court of Justice of 1976:
+------------------------------------------------------------------+
| |
| However in all cases the plan-conformant utilisation of |
| controllable forces of nature has been named as an |
| essential precondition for asserting the technical |
| character of an invention. As shown above, the inclusion |
| of human mental forces as such into the realm of the |
| natural forces, on whose utilisation in creating an |
| innovation the technical character of that innovation is |
| founded, would lead to the consequence that virtually all |
| results of human mental activity, as far as they |
| constitute an instruction for plan-conformant action and |
| are causally overseeable, would have to be attributed a |
| technical meaning. In doing so, we would however de facto |
| give up the concept of the technical invention and extend |
| the patent system to a vast field of achievements of the |
| human mind whose essence and limits can neither be |
| recognized nor overseen. |
| |
| [...] |
| |
| The concept of technical character seems to be the only |
| usable criterion for delimitation against other human |
| mental achievements, for which patent protection is |
| neither intended nor appropriate. If we gave up this |
| delimitation, there would for example no longer be a |
| secure possibility of distinguishing patentable |
| achievements from achievements, for which the legislator |
| has provided other means of protection, especially |
| copyright protection. The system of German industrial |
| property and copyright protection is however founded upon |
| the basic assumption that for specific kinds of mental |
| achievements different specially adapted protection |
| regulations are in force, and that overlappings between |
| these different protection rights need to be excluded as |
| far as possible. The patent system is also not conceived |
| as a reception basin, in which all otherwise not legally |
| privileged mental achievements should find protection. It |
| was on the contrary conceived as a special law for the |
| protection of a delimited sphere of mental achievements, |
| namely the technical ones, and it has always been |
| understood and applied in this way. |
| |
| Any attempt to attain the protection of mental |
| achievements by means of extending the limits of the |
| technical invention -- and thereby in fact giving up this |
| concept -- leads onto a forbidden path. We must therefore |
| insist that a pure rule of organisation and calculation, |
| whose sole relation to the realm of technology consists in |
| its usability for the normal operation of a known |
| computer, does not deserve patent protection. Whether it |
| can be awarded protection under some other regime, e.g. |
| copyright or competition law, is outside the scope of our |
| discussion. |
| |
+------------------------------------------------------------------+
Gert Kolle, the leading scholar of patentability at the time,
commented that the Court's approach was the only legally admissible
and socially responsible approach to take, because "automatic data
processing is ubiquitous", i.e. used everywhere in all industries,
and patents in this field would lead to incommensurately broad
monopolies. Painful experience has since then proven the the wisdom
the Court and of Kolle's comment. And automatic data processing is
even more "ubiquitous" today than it was in 1976.
By failing to restrict patentability to the realm of applied natural
science, the EU would stifle innovation and productivity in Europe.
By passing a directive which hinges on an undefined central term,
the EU would abdicate its legislative competence and create
systematic legal insecurity. The term "technical" must either be
defined as above, or it must not be used at all.
- technology definition amendments, PILCH Hartmut
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