Re: [uk-parl] UKPO - strange ideas about "technical"

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

Dear Steve,



> That's encouraging. Thanks. One of the outcomes from yesterday's
> meeting was the recognition that there is a clear need for some further
> workshops and/or seminars to explain the meaning (in law and practice)
> of "technical contribution". This is very important, not least because
> as Lord Justice Aldous said in the Court of Appeal in Fujitsu (1997) "it
> is a concept at the heart of patent law".

Even Judge's have bad days- I don't disagree with Alduous that a true 
invention that utilises software in part should be patentable- but the Vicom 
decision was the worst possible case to cite as a 'cornerstone' of patent 
law (it only dates back to 1987, not the foundation of patent law.)Vicom was 
the decision that confused everything and broke the requirement for 
"technical" meaning statutory invention (applied natural science) it is no 
coincidence that every case that followed it at the EPO eroded the doctrine 
until 1 click shopping was sufficiently technical. To see how ridiculous 
VICOM was you only have to read their own reasoning.

"14. A computer of known type set up to operate according to a new program 
cannot be considered as forming part of the state of the art as defined by 
Article 54(2) EPC. This is particularly apparent in the present case as 
Claims 8 - 11 clearly embrace also the use of special hardware, for which 
some indications are given in the description and also mixed solutions 
combining some special hardware with an appropriate program. "



The introduction of the "software" "hardware" dichotomy just so as to 
confuse everyone rather than the test of whether it applies natural forces 
in a new way which is the true test of an invention not whether it contains 
software or hardware. Unless of course we want a U.S. system where provided 
it's new, non-obvious and useful it's an invention.

"if a mathematical method is used in a technical process, that process is 
carried out on a physical entity (which may be a material object but equally 
an image stored as an electric signal) by some technical means implementing 
the method and provides as its result a certain change in that entity. The 
technical means might include a computer comprising suitable hardware or an 
appropriately programmed general purpose computer. "

I don't know of a single computer program that does alter some kind of 
object existing as an electric signal in a microchip. From this point on 
anyone who would want to enhance an image using a particular formula or 
algorithm can now infringe a patent- and programmers know all about patents 
like this when they effect algorithms like GIF and JPG, we're stuck with the 
results even to this day. Even though they are only writing software "as 
such" with no appliance of science at all they can be sued.

If you want teachings of applied natural science to be patentable that 
happen to use data processing in part, then why don't you support the 
Europarl amendments which clearly define technical in a way that the UKPO 
cannot?

I'm sorry but as Phillipe Aigrain once wrote "there are limits to legal 
thinking when it ignores the substance of what it is applied to". You can't 
have clarity while going on about so-called technical software.  Software is 
software, instructions given to a data processing system whether its 
embedded on a disk or a chip, either you make it clear that a patentable 
process is a physical appliance of science or you allow the drift to 
continue endlessly into abstract schemes of thought and algorithms.

Please don't get me wrong Steve, I'm honestly not trying to be rude, but I 
just think this debate ends getting caught up in endless patent formalisms 
rather than addressing the key issues which is what we all  want to do. 
(Most of us really do want clarity and legal certainty and to know we own 
what we publish and can express ourselves freely in code without getting 
sued, the council draft does not offer that legal certainty).

Sincerely,

Christian