Re: [Patents] Which companies are against art 2a and 4.3a?

[Flemming Bjerke <flem@bjerke.dk>]

Thursday 10 June 2004 18:17 wrote Jonas Maebe about Re: [Patents] Which 
companies are against art 2a and 4.3a?:
> On 10 jun 2004, at 17:27, Flemming Bjerke wrote:
> > Sorry, I did not expressed myself clearly. I meant that the electronics
> > industry to a large extent produces products which transmit, presents,
> > store
> > etc. information, e.g. mobile telephones and TV's. Perhaps their
> > reading of
> > art 2a and 4.3a is: patenting of software that control the technique in
> > mobiles and TVs, is not feasible according to these articles.
>
> That is correct. You cannot patent any software according to those
> articles, regardless of what the software does. On the other hand, some
> invention embedded in a TV or mobile phone does not become unpatentable
> if it's controlled by software (but then you don't get a patent on the
> controlling software, but on the invention controlled by this
> software).
>
> My personal example of this (I may have mentioned it before on this
> list, but I don't remember) is a weaving machine. Suppose you have a
> fully automated weaving machine, completely computer/software
> controlled. You then find out that if the knives of the machine are
> turned at a specific angle relative to the threads, you can cut those
> threads much more easily. However, all you have to do to integrate this
> (possibly patentable) invention in your weaving machine, is change the
> value of a few variables (and maybe add some mathematical formula to
> describe the path that those knives have to follow) in the controlling
> program.
>
> That does not matter according to the EP's version of the directive,
> because your invention is how those knives are positioned relative to
> the thread, not that you use some computer program (or how you use a
> computer program) to do that. However, you do not get a patent on the
> used mathematical algorithm nor on the input parameters to it.
>
> If there is no innovation present outside the mathematical/software
> part, then there is no patentable invention. And there are indeed a lot
> of patents in e.g. the mobile phone industry that correspond to this
> (e.g. on the smart typing of SMS'es).

Yes, this is a relatively clear-cut distinction. I wonder if we could find a 
better example.
>
> > Although their
> > purpose of using software is control of technique, rather than
> > computing,
>
> A computer is also technique, you can't make meaningful distinctions
> this way. Those things all have an embedded cpu that executes those
> instructions.
>
> What you are arguing for, basically boils down to trying to establish
> what separates the "normal physical interaction between a computer and
> a computer program" from the "further technical effect", and only
> allowing a patent on "inventions" which have this further technical
> effect. It's the current EPO doctrine, which has resulted in all the
> software patents we are stuck with now.

No, no, that is cut salami in meters! What I thought about, was, whether 
there 
were real compromises or not, and whether there could be reasons for drafting 
compromises or not.
>
> In fact, the EPO itself has argued that this "further technical effect"
> is only confusing, see
> http://swpat.ffii.org/letters/cons0406/text/index.en.html#ed24@A2
>
> I still think the only clear doctrine is to consider things described
> in software exactly the same as descriptions in any other form or
> language: if the described stuff would be patentable in described in
> plain English and when not executed by a computer, would it be
> patentable? If yes, great, if no: sorry, but simply translating the
> description of your innovation in a machine-readable form does not
> suddenly make it a patentable invention (the work you did while doing
> that is protected by copyright, and the rest is either a patentable
> invention or not, regardless of its form).

It is quite clear. But, usually legai texts are not that clear, because they 
are compromises. Anyhow, the question is whether there are any real 
compromises or all compromises are of the futher-technical-effect-kind that 
refers to what is "normal" in a computer or similar slippery concepts.

flemming

PS: It was really good that you "taped" the Council meeting. We had a public 
hearing in the Danish parliamentary commitee for the reason.