Re: [Patents] Gregnews: US report proves EP lies

[Erik Josefsson <ehj@cleosan.com>]

Richard M. Stallman wrote:

> I agree that a generalization is going on here, but I am not sure it
>  is wrong.  It also isn't new.  The idea of the "universal machine" 
> that can emulate any other "machine" goes back to the beginning of 
> computing theory, before real computers.  So I don't think that it is
>  inherently a misinterpretation of the term "technology" to include 
> software or its uses.

It is misleding in the context of patent law to use the term
"technology" for software.

> The problem only comes from the criterion of "technical character" 
> which has been used in various actual or proposed patent laws.

I don't understand what you mean. "Technical character" is the first of
the four requirements for patentability.

> I don't think this gives a basis to say it's erroneous to use the 
> term "technology" for software.  It is only a basis to say that use 
> of the term might lead to a harmful consequence in interpreting these
>  laws.
>
> However, I don't think that the public's understanding or use of 
> "information technology" has much effect on the danger.

That depends. I'd say the term "information technology" is even more
dangerous for the public's understanding of the software patents debate
than the term "intellectual property".

In Europe we can easily avoid the term "intellectual property" in the
patent discussion as patents are more properly labeled here as
"industrial property".

I think it would help if you introduced "industrial property" in your
words-to-avoid-guideline. It would also help a lot if you could use the
word "data processing" more often.

> The cases where I have campaigned against terminology are where the 
> terminology shapes the opinions of the public, or of the 
> legislators--of the people we can hope to convince.  When terminology
>  gives them the wrong idea of the practical effects of software 
> patents, explaining what's wrong with the terminology can help us 
> clear up their mistaken conclusions.

True.

> But I don't think that the question of how to interpret "technical 
> character" has much effect on whether the public (or legislators) 
> favors software patents.

I am sorry, but "technical character" is the key criteria in swedish
patent law tradition (and I guess in other german traditions as well).

The discussion dates well back to 1963 where the "invention concept" and
"technical character" was discussed in depth in the preambles of the
law. It is still present all over the place, e.g. in EPO papers :

  "While "programs for computers" are included among the items listed
  in Art. 52(2), if the claimed subject-matter has a technical
  character it is not excluded from patentability by the provisions of
  Art. 52(2) and (3)."
  http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm

Inventions have technical character in Europe, but as far as I
understand, there was never an U.S debate on "technicity" etc.

> How judges interpret "technical character" can be important.

It is the most important criterium. It is fundamental.

> But I don't think a campaign on our part against that term would 
> deliver much effect on judges.  The people who listen to us mostly do
>  not have much contact with judges.

I thougt this discussion was about sloppy use of the term "information
technology". Are you seriously advocating a campaign against the term
"technical character"?

> If we want to influence how judges interpret "technical character", I
>  think the best way is to put these arguments into articles and 
> publish them in places that judges might read.  For instance, law 
> reviews. That may not be easy, but if done, it might do some good.

The whole discussion about "controllable forces of nature" and "applied
natural science", I'd say the whole directive, is about how to define
the borders of what is patentable subject-matter, the "invention
concept" etc.

//Erik