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

[Jonas Maebe <jonas.maebe@ugent.be>]

On 29 mrt 2004, at 05:40, Christian Beauprez wrote:

> 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".

That's why one should look at the invention itself, and not at what is 
claimed. The EPC states that to be a patentable invention the 
innovation must be patentable subject matter (i.e., not excluded by art 
52), new, non-obvious and industrially applicable. It does not state 
that what is claimed can be used to fulfill these conditions. 
Otherwise, as you have observed, you can simply claim a computer 
program as some electron interactions in a computer chip resulting in 
what you want to achieve with your computer program to get around the 
"computer program as such" exclusion.

So in the case of the washing process, the invention is purely the new 
washing process (e.g., some kind of motions which causes the stains to 
be removed more easily). On what applications and realisations of this 
washing process you want a monopoly, will then be described in the 
claims. These can indeed include software, manual controls etc... 
That's not the (patentable) invention however, there's nothing 
inventive nor new about controlling a washing machine using software 
running on an embedded computer.

In other words: your invention is your (technical) contribution to the 
state of the art. Your contribution is not that electrons move inside a 
computer chip (or the fact that you can make them move in a new way by 
feeding the computer chip a particular program) and  it's also not that 
a washing machine is controlled by a computer; the only new teaching is 
that new washing process, so that must be your invention.

By considering the claims as a whole as "invention", you can use the 
software to pass the newness and inventive step requirements and the 
whole claimed object/process to pass the patentable subject matter and 
industrial applicability tests. That's what the original Commission and 
new Council proposal are trying to do.

> "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.

And that's why one should not look at the realisation in the real world 
of some innovation to determine its patentability (i.e., at what is 
claimed), because such a realisation indeed pretty much per definition 
happens using controllable forces of nature.

It's the invention, aka the contribution to the state of the art, that 
must teach something new about these controllable forces of nature. 
Writing a new computer program will never accomplish that. A computer 
processor and its memory may come into a new electrical configuration 
which they never had before by interpreting this program, but by doing 
that you did not teach the world something new about these electrical 
forces. After all, a computer chip and memory are designed to do 
exactly that.

This new state that the processor and its memory came into, are similar 
to the new "state" a piece of paper comes into by writing on it using 
pencil (something that no-one else has written before). Although that's 
a clearly physical process with physical consequences, you did not 
teach the world something new in the realm of physical teachings by 
doing this.

That's why saying that an invention is a teaching utilising 
controllable forces of nature excludes software: algorithms used in 
software can contain a teaching, but not regarding controllable forces 
of nature (only teachings in the logical/abstract realm). Also, a 
computer program can be interpreted using an existing apparatus that 
operates according to controllable forces of nature (a computer), but 
then there is no teaching present regarding these forces (since the 
computer is already known).

> 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".

As Hartmut said, the forces of nature are quite well defined in the 
scientific literature. There are only 4 known forces of nature at this 
time (and there have been only 4 since quite a while), see e.g. 
<http://csep10.phys.utk.edu/astr162/lect/cosmology/forces.html>

> 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.

I fail to see how they become obsolete when trying to appreciate the 
patentability of a new washing method (implemented by a washing machine 
or not). The new washing method can be a technical teaching and can 
perfectly conform to the given definition. Afterwards, you can claim 
whatever implementation of this washing method you want, using pure 
mechanical parts, with a combination of software and hardware (it'd be 
kind of hard to wash cloths using pure software and no hardware :) or 
using quantum mechanics and nano-tech.

That's the nice thing about those decisions: they are completely 
independent from how you implement your solution to the problem (and 
therefore don't become obsolete as new implementation methods are 
developed), they only talk about what the new solution should teach the 
world.


Jonas