Re: [Patents] The Dream Directive

[Hartmut Pilch <phm@a2e.de>]

> > http://beauprez.net/softpat/dreamdirective.html
> > Computer programs and the "technical effects or processes" produced
> > within the field of data processing are synonymous
> 
> I suggest not to use the word technical at all, because it's meaningless.

As long as TRIPs is in force, you're forced to assign a meaning to it, and
indeed there is a tradition of using the term in a meaningful way.

> Colloquially "technical" is synnomous with complicated, since computers
> are complicated for most non-geek people, everything to do with
> computers is "technical".

If you want to talk to non-geek and non-lawyer people, it is indeed a bad 
idea to use legal terms of whose special meaning people are unaware.
 
> Much of everybodys confusion is due to abusing this word. Forinstance I
> have no idea what what constitutes "technical contribution" in the
> commisions directive. (e.g. how many "usefull, concrete and tangible"
> effects are technical contributions?)

Most people at the Commission have no idea either.

Also the lobbyists from EICTA, BSA etc and the MEPs listening to them
[pretend to] have no idea.  They [pretend to] believe that unlike US,
Europe has a requirement that inventions should be complicated, i.e.
non-trivial.
 
> However, technological is a better and much less abused word.

NACK

"technology" is even more confusing.

Literally, it is the "theory" (-ology) of engineering ("techn-"), not 
engineering itself.

In German, 'Technik' and 'Technologie' are distinctively used in this way.
Technik is patentable, Technologie not.

> (and is used in the phrasing of TRIPs and the Parliaments directive)

NACK

The EP directive uses "technical field" etc.

> Sensible definitions are:
> "technological field"
> = field of applied natural science
> = field of knowledge creation by empirical experiments
> = field of applying natural forces to ...
> 
> Invention = innovation with a teaching within a technological field.
 
ACK, except that "-ologi" doesn't make anything better.
 
> Btw. just for some perspective read the Indian patent office's
> practice. The indian patentlaw states that software is not per se
> an invention.

I'm afraid the indian doctrines are confusing and wide open to abuse.

Prof. Verma, speaking in Louvain

        http://plone.ffii.org/events/2004/deso03/

showed strong signs of having been confused by these doctrines in the very
same way as people were confused by the EPO talk in the late 80s here.  
It appeared from her speech that a calculation rule claimed in terms of
its "technical effects" on a data processing system was not a calculation 
rule as such but a technical invention.

> Since the claims may be couched in terms which tend to obscure the fact
> that the invention relates to a computer program, it is always essential to
> analyse them, in the light of what is described and of the prior art, in 
> order
> to identify the contribution to the art and hence determine whether this
> advance resides in, or necessarily includes, technological features, or is
> solely intellectual in its content.

I don't think it is made clear anywhere here that data processing is not a 
field of "technology" and that improvements in data processing efficiency 
(speed, memory space etc) are not "technological features".

> If however the format of the program, or the nature of the record medium
> (tape, disc etc.) necessitated some non-standard adaptation to the
> computer itself (this factor being integral to the invention and not an
> arbitrary unrelated addition) then the exclusion would not apply.

This seems to state a principle of looking at the invention rather than at 
the claim scope (differential examination, "core theory").

But it is very vague about what the invention must consist in.  It states
neither a positive test (applied natural science) nor a negative one (not
within the scope of a program claim).

I think Prof. Verma wasn't at all keen on having software patentable.  She 
said that it was disadvantageous to India in its current state of 
development but hinted that, as soon as India was a software super-power 
like US, "protecting" its software "inventions" might be a sensible thing 
to do.  The same confusion about the value of such "protection" and its 
conflict with the value of copyrighted goods was pervasive here too.

-- 
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/