Re: [Patents] technology definition amendments

[Hartmut Pilch <phm@a2e.de>]

> Sorry to be dragging this one out, but I am seeking clarification on why
> there is such a focus on what is 'technical' and what is 'technology'?
> Is it because of the particular harmonization process that is underway,
> or are there more fundamental reasons?

reasons are

 - If taken seriously, this concept works and is equivalent to everything
   that you get as a result of your field-by-field economic analysis
 - There is a nearly unanimous tradition of using the concept of
   technical = concrete & physical to define the limits of patentability
 - A systematic concept is better applicable in law than the results of
   a field-by-field economic analysis.
 - Art 27 TRIPs imposes the systematic approach, based on technicity.
   The field-by-field approach explicitely forbidden by Art 27 TRIPs.
   Arguably it favors legal insecurity and creation of trade barriers.

See Dispositionsprogramm decision

        http://swpat.ffii.org/papers/bgh-dispo76/

and

        http://swpat.ffii.org/analysis/invention/

It should be clear that, once you impose a general concept such as
"technical" and you say that this is *the* criterion for delimiting what
is patentable, as the current directive does, then you are obliged to
define it.

In fact Art 27 TRIPs also obliges the US to define that criterion.  It is
not only reprehensible to fail to define it within a European directive.
It is also reprehensible to sign a treaty like TRIPs and impose it on
third world countries but at the same time to fail to treat the terms on
which reduction of trade barriers is based, namely "technology",
"industry" and "invention", in a meaningful manner.

The US delegation is actually pushing for the abolition of Art 27 TRIPs
and its substitution by a new provision in the Substantive Patent Law
Treaty, which will simply stipulate that anything under the sun must be
patentable.  The European delegation is aiming for the same thing, but
wants to have the terms "technology" etc as back doors which allow
arbitrary decisions against certain patents, if that is needed to
avoid scandals or reduce the backlog of the patent office.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
150,000 votes 2000 firms against software patents    http://noepatents.org/