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

["Christian Beauprez" <beauprez@beauprez.fsnet.co.uk>]

 Dear Hartmut,
I see now where you are both coming from on this. That the improved process
for washing clothes is a process within itself that could be patentable even
if the novelty of that process is realised wholly by software or
alternatively by human hand, and what should happen is that the process is
patentable without extending to the software itself.

But I don't see how this is possible in reality.

The fact is that human hands do not spin washing machines, it is the
software inside it (provided it has a chip etc.) If human hands spun a
washing machine in a certain way then they would have to be mentioned in the
patent claim (otherwise the invention would not work), likewise if software
implements a certain method for spinning a drum that would also have to be
in the patent claim within the description of the "method".

I have actually read the document of the German patent court before. But
while I agree with their instincts, I did not see any concrete legal
argument as to why software wouldn't be patentable under their findings.
They also did not set realistic restrictions.

For example they talk of ,

"According to this, a patentable invention is a teaching for plan-conformant
action utilising controllable forces of nature for achieving a causally
overseeable result. It is beyond doubt that a rule of organisation and
calculation, as described in this patent application, constitutes an
instruction for plan-conformant action and that the execution of this
instruction leads to a causally overseeable result. "

As we can see the only differentiation they could make was that a
mathematical rule did not contain the "forces of nature" part in itself.Are
electrons not controlled forces of nature? The answer is that all technology
by definition is a controllable force of nature.




"However human mental activity does not belong to the controllable forces of
nature in the sense explained above. This concept refers only to those
forces of nature which lie outside the activity of the human mind and are
controlled by man with help of the human mind. "

Does this necessarily mean a moving apparatus, how would this include a
washing machine and exclude a computer apparatus or a computer network?
Doesn't a computer operate outside the mind?

Although the court had prevented patenting of the human mind which is
admirable (it's probably up for grabs now) , they had not given a realistic
definition of what could constitute a "force of nature". In regarding the
question as to what could be defined as a "force of nature" they came up
with the inspiring idea,

"In the Rote Taube (red dove) decision, this court generalised this
definition so as to accommodate other forces of nature than those of physics
and chemistry, e.g. those of biology. "




Great... so we have a definition of an invention! One that must include
biology or at least a realm outside of physics and chemistry. What possible
clarity can this give when we talk to politicians about how we decide what
is patentable or not. Tell them that it must contain "forces of nature other
than those of physics and chemistry,?"




'no "considerations located in the technical realm" '

I like this quote because we all know what they were trying to get at.
However how do we apply this in reality to a washing method on a washing
machine and not to a digital decoding method for a mobile phone, or a
digital method for controlling a computer apparatus? They all use
controllable forces of nature, none of them use biology except perhaps when
they are operated..




"it must serve to achieve the causally overseeable result",

 What does this mean? Does a monitor that behaves under the influence of
software not have a causally overseeable result? Does a computer that
generates graphics not have a causally overseeable result?




I must say that you place a lot of emphasis on obsolete case law. It is
obsolete for a reason. These cases did not answer the question in reality of
what was patentable. They only showed admirable instincts as to why
mathematical methods should not be by talking generally about mind and
matter. But whether these methods improve the efficiency of a network or
spin a washing machine in a new way is not the issue, only the EPO have made
it one.

When we get into a situation that we ourselves are arguing that software by
itself can render a new patentable process when implemented by an existing
machine then why are we complaining about "computer implemented inventions"
at all? The answer is because that method by necessity involves the
expression of the software.

 e.g. Transmittion of data over a network. (The network is physical and
therefore "technical" and can be made to produce a patentable method that
uses "forces of nature" but it is not the network but a software program
that does this ).




My proposal was not to "re-invent the wheel", rather to cut through all the
smoke that has been generated by the EPO since 1978 and to find a coherant,
simple policy on this that is both philosophically and legally coherant and
that can be explained to the public and politicians simply.

The argument that I want to get across has to be routed in law. (not the
EPO's or patent courts  version of it). It is currently as follows:

1) Computer programs are synonymous with the "technical effect" or
"technical process" they produce (as demonstrated by the dictionary
definition of a "computer program" and the software copyright directive
1991).

2)This technical effect (the execution) is covered "as a literary work" by
copyright and is therefore by itself unpatentable.

3)Any invention therefore that only has novelty by means of a "software
innovation" running on an existing apparatus by itself is not an invention
whether it displays a technical improvement or not because that process is
synonymous with software.

Anything less than this and we may as well hand the argument over to the
patent lobby because it will not hold together.

The other alternative is ,

"while software per se is not patentable, if by means of that software a
method is realised whereby that method relates to industrial application, is
new then it should be patentable, but not the software itself"

When asked how we decide this we would have to talk to them about
"controllable forces of nature" that operate above and beyond "physics and
chemistry". I can see the patent lobby laughing now...

 If we want to stop pure software patenting, we have to draw a line in the
sand somewhere and a process relying solely on software is a good place to
start . Otherwise any process implemented by an "apparatus" of some
description running under software that has an application to an industry of
some description is patentable and software would by necessity constitute
the "invention".



Chris