Re: [Patents] Cryptographic patent... and research.

[Hartmut Pilch <phm@a2e.de>]

> This is one of the reasons why I don't agree with some of the legalistic
> discussions in this list about whether something is 'technical' or not.
...
>  We should always go back to first principles to analyze any public
> policy.
... [ very long text ]

If you ask examiners to "go back to first principles", you will not get
predictable results on a daily basis.  Thus, "going back to first
principles" is meaningful only if you can derive an applicable rule from
these principles.  And the test of technical invention, as found in german
decisions such as "disposition program" (1970), "rolling rod splitting"
(1980), "flight cost minimisation" (1986), "operating system" (1990) and
"error search" (2002), is such a rule.

The discussion turns wrong when you play with the words of the rule and
twist in in a way that it degenerates, loses its distinctive meaning and
thereby also loses its justification in view of "first principles".
Indeed it is a good idea to constantly measure the rule by reference to
"first priniciples".  But this measuring exercise becomes pointless when,
as you seem to be proposing, you discard rules altogether and evade the
question of what is technical and what is an invention.  No "first
principles" discussion will allow you to evade the question.
Patentability is tested by a rule, and this rule is tested by a "first
principles" discussion.  You can't skip the intermediate step.   Bakels
and Hugenholtz try to skip it, and that is the weakest point of their
study.  It is also the weakest point of a certain "pragmatic" thinking
habit which seems to be particularly widespread in the Common Law culture.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
155,000 votes 2000 firms against software patents    http://noepatents.org/