Re: [Patents] The Importance of Potential (continued)

[Hartmut Pilch <phm@a2e.de>]

> This is why in my opinion while we should "allow new machines that run
> software" but we should not allow "old machines that run 'new' software" to
> be considered as inventions. 

As explained by Jonas and myself, this test doesn't work, because you can 
have a new technical invention without new equipment. 

If you want a simple test, there are two possible variants which work well 
and are well grounded in patent law tradition:

(1) if you can claim it as a "computer program, characterised by ...
    (generic data processing equipment, entities such as i/o, algorithms)"
    and this claim scope would be novel and contain the whole novel
    teaching of the application, then your application is directed to
    a program as such (see EPO Examination Guidelines of 1978).  In
    the washing process case, the program part is probably not novel at 
    all, but the way of removing stains perhaps is, and the latter 
    wouldn't even be part of the claim scope (because a stain is not
    the same thing as a symbolic reference to a stain made by a program).

(2) the concept of technical invention as shown in the formula of the
    german jurisprudence ("controllable forces of nature must be part of 
    the problem solution for which a reward in the form of an exclusion 
    right is sought" or similar).  In the washing process case, the
    forces of nature may indeed be unseperable from the invention: without 
    the forces of nature there is only an already known empty logical
    construction whereas with the forces of nature there is something new.
    So you can get only a claim to a process or machine of which these
    forces form a part.

Both are logically equivalent.

If you want to reinvent the wheel, make sure you first show how it 
was previously invented, with quotations from the writings.  And show
why your way of putting matters is clearer or otherwise better.

-- 
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/