Re: [Patents] Software patents: the case against

[Hartmut Pilch <phm@a2e.de>]

> > An instruction manual : I like the idea of this but I am not sure if 
> > people
> > could equate this with a process based example. I was also not sure 
> > because
> > the instruction manual could relate to a legitimately patented technology.
> 
> There is an analogy with a cooking recipe (also a instruction manual
> if you like).

No, new cooking processes are patentable.

The packaged food industry of course has lots of patents.

This doesn't mean you can get an information claim on the recipe.

The only restriction is that the novel part should not be of esthetic
nature.  

I.e. if you look at the formulate for defining "technical invention"

  planned action using controllable forces of nature to achieve a causally 
  overseeable success

then you can see that you have everything in cooking recipies, except for
causal overseeability in the success on the human palate, i.e. there is
subjective judgment on which this success depends, rather than a new
causal relation.

The cooking recipe example, like the symphony example, does not help much.
It merely confirms the prejudice of many people that everything 
functional, such as most sofware, should be patentable, whereas esthetical 
things, including esthetical software, should not be patentable. 

> I think it will not be very hard for an experienced cook to modify some
> cooking recipes in a way where the end result is that it needs less boiler
> plates, pots or time, or make the cooking result "lighter" or "bigger" or
> "softer" or "more creamy", so... Wouln't it be a technical effect then?
> 
> So why not patenting new ways of cooking? Actually the USPTO has such:
> 
> US 5,939,113 ; Issued in 1999 ; Free-standing lasagna product:
> http://www.ipwatchdog.com/obscurepatents/obspat_2_28_03.html

Inded McCarthy and here entourage will claim that they are saving Europe
from this by their directives.  Francisco Mingorance claimed this week at
a conference in Paris that they are desperately trying to limit 
patentability but the opensource movement has spoiled the game by creating 
obstacles in the European Parliament, which is why the EPO is continuing 
to grant bad patents.  It was a real lesson in lobbyism which I received 
there directly from a master.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/