Re: [Patents] The Economist on Software Patents in Europe

[Hartmut Pilch <phm@a2e.de>]

> > Arlene McCarthy, the rapporteur of the European Parliament's committee for
> > legal affairs and the internal market, has now proposed an additional test
> > for patentability: an invention must teach a new way to use _controllable
> > forces of nature_ (really) and have an _industrial application_. This aims
> > to strengthen the exclusion of pure software and business methods.
>
> Electrons running through CPU and memories ARE, by definition, a 
> controllable
> forces of nature (even if in fact they are more or less really controlled 
> :) !

But forces of nature are not part of the invention in any software patent.

The test can make sense, and it has made sense in the past, see

        http://swpat.ffii.org/analysis/invention/
        http://swpat.ffii.org/papers/bgh-dispo76/
        http://swpat.ffii.org/papers/bgh-walzst80/
        http://swpat.ffii.org/papers/bgh-flug86/

> And so, isn't an office suite (software) and industrial application
> (industrially put on CR-ROM and sold out) of a controllable force of nature 
> ?

Yes, but what is new in there is unrelated to forces of nature.

> This doesn't make more sense. Except to proove that A.M. hasn't (or has too
> well) understood the challenge on software patents...

A.M. has opposed the concept of "technical invention" before, see

        http://swpat.ffii.org/paper/eubsa-swpat0202/amccarthy0302/

There is no doubt this concept would help, but it doesn't help in
isolation (e.g. when you apply the test to the whole claim scope or to
what the EPO calls "technical contribution").  There must be one teaching
(invention)  which passes all the fourt tests of technicity, novelty,
non-obviousness and industrial application.

Moreover, apart from this abstract rule, some concretisations, similar to
Art 52 EPC, also need to be formulated.  More importantly still, the aims
of the directive must be understood and formulated without ambiguity.
There is little reason to believe that AM, even when using the right
formula, actually wants it to mean something in the directive.

See our counter-proposal

        http://swpat.ffii.org/papers/eubsa-swpat0202/prop/

for more.

Feel free, anyone, to repost this to the other lists which were in CC.  I
took them out, because of the bad experiences with cross-posting.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
200,000 votes 2000 firms against software patents    http://noepatents.org/