Re: [Fsfe-uk] Fwd: UK Leading Patents?

[PILCH Hartmut]

> As far as I'm aware, none of these are UK Patents (except by proxy).

The UKPTO is backing the CEC/BSA directive proposal and thereby lobbying
actively for rules that legalise all patents granted by the EPO and make
them enforcable in the UK.

> To recap, the claims are:

> + UKPTO are driving the EPO toward complete patentability for software;

No.  The EPO is already there.  But in the past, the british have had a
major part in bringing it there.  Now they are at the forefront of those
in Europe who want to stabilise this harmful and illegal EPO practise
and make it obligatory for Britain and all others.

> + the UK is in favour of 'patent inflation';

We are not talking about their words but about their deeds.

> + the 'technical effect' requirement is software patentability through
> the backdoor.

No, the failure to define this requirement plus a double-talk way of using
the word is their means of assuring that anything is patentable,
including business methods.

> To be honest, having read most of what has been linked up here, I'm not
> really buying into much of this. I would gladly be better informed if
> this wasn't the case, but directing criticism at the UKPTO seems mostly
> unjustified.

The UKPTO is pushing for the CEC/BSA directive proposal and for a change
of Art 52.  They are the only ones in Europe who are pushing.  And they
claim that their push is justified by the results of the british
consultation, which is really a very bold intellectual maneuver.

> Firstly, I don't think technical effect is necessarily double-talk. We
> have a situation where you are able to apply for patents to physical
> devices; i.e., those which have a physical effect.

You should not get a patent for a physical device but only for a
physical invention.
Devices are not patentable.  Inventions are.
Which means that your physical device must represent a new and inventive
way of using forces of nature.
That is what "technical" means.
Either that or nothing at all.
The UKPTO pretends that they have the forces of nature in mind but in fact
doesn't and shyes back whenever they are pressed to explain what
"technical" means.

> Many of these, though, could be implementable via other means: if
> there was no technical effect, it would be possible to bypass a number
> of patents simply by implementing them in software (at least
> partially).

Patents that can be bypassed by programming (i.e. logical operations) on a
known set of physical knowledge and apparatusses should not have been
granted in the first place.  They are logic patents (software patents), no
matter how they are claimed.  You can write logical rules onto a circuit
just as you can write them onto a diskette.  The fact that the diskette
can be copied more easily than the circuit does make an economic
difference, but it doesn't change the software nature of your invention.

Again: patents are granted for technical inventions, not for dressing up
logical ideas in a physical form by using well known means of embodying
logic.

> Whether you would agree with the granting of the patent in the first
> place is not the point; the system would not work without this clause
> - to not have it in would be nonsensical.

The system needs the distinction between technical inventions and
logical ideas, i.e. the patentable and the unpatentable, as listed
and implied in art 52 EPC.

Without that distinction, it would not work.

The UKPTO is, maybe out of ignorance or bad faith, doing everything to
remove this distinction.

> Technical effect is problematic. It is essentially undefinable, but I
> don't believe it to be the huge hole that the various websites make it
> out to be.

It is irresponsible to limit patentability using an undefinable concept.

Moreover, the "technical invention" (forget about "technical effect", we
are talking about the invention concept of art 52 EPC) has been clearly
defined by the German courts in the 1960-80s, and this definition
("teaching about causal relations between use of natural forces and
achieved effect, where the natural forces are a constitutive part of
the problem solution which is claimed to be novel, inventive and
industrially applicable") is as workable today as it was back then.
It is the only known theory of technical invention that conforms to
the EPC and gives the concept of invention any meaning.

Please read the

        Dispositionsprogramm Decision
        http://swpat.ffii.org/vreji/papri/bgh-dispo76/index.en.html

> If the were, then people would have used it already. Technical effect
> has been part of British law for years (1977).

Could you cite a British law that actually uses this term?
Not a court decision but a law?

> Technical effect must apply to an industry already patentable (i.e.,
> not software).

It is not enough that an idea is somehow associated with an industry where
patents are granted.  The "technical invention" concept must be defined
more stringently, as done by german caselaw in the 1960-80s, if it is to
serve as an auxiliary theory that allows courts to stay within the limits
given by art 52 EPC.

> For example, it is not possible to patent a painting. However, if you
> were to paint a circuit which did something you might be able to do it
> - the fact it is painted doesn't exempt it automatically.

Right.  Here you provide one example of the basic logic of distinguishing
technical inventions from the items listed in art 52 EPC, in this case
"aesthetic creations".  The same applies to "programs for computers".
You can only stay clear of the list of exceptions if you have an invention
concept that avoids any overlapping between "technical invention" and
software.  There is one concept that does precisely this and is also
in other ways sharp and predictable.  Any loosening of this concept leads
to unlimited patentability, as the BGH Dispositionsprogramm decision
lucidly analysed.

> UKPTO has been calling for technical effect to be clarified. However, I
> just don't see how UKPTO has been shaping EPO opinion - T0935/97
> happened in '97 (obviously), which is five years ago.

It happened in 1998.

> The case had been brewing for longer; I haven't found the initial
> application but that would have been mid-nineties at the latest. UKPTO
> interpretation of the 'technical effect' was influenced by this
> decision; not the other way around (unless anyone has contradictory
> evidence?).

The major breakthroughs at the EPO came in 1986 (Vicom, Sohei) and around
1993 (mass production of swpat running into full gear).  The 1998 case was
only about allowing direct information claims for things that had already
been made patentable.

The EPO has been, due to its lack of controllability, the place where all
the bold decisions were taken.  But they were pushed by british people,
and the UKPTO group has been instrumental in pushing the EU to legalise
what the EPO had done and make it obligatory for all of Europe.  The UK
has also been the forerunner of software patentability in the 1970s.  Art
52 was passed thanks to pressure from France, with Germany siding with
France, and against vocal resistance from the UK.

> If you believe the 'technical effect' clause can be removed, I think
> you're essentially asking for the end of the patent system, or at least
> a radically different one.

I am asking for a serious reintroduction of the concept of "technical
invention".  If that can't be done, then they should stop fooling people
with "technical effect".  We all know where that leads.  It is no longer a
question of theory (known since Dispositionsprogramm) but of facts lying
before our eyes.

> I personally don't think it will happen,
> especially since this isn't a software-only thing. There are quite
> clearly major problems with the patent system, but I don't see how UKPTO
> is involved in this, other than through the fact that a lot of patent
> litigation happens in the UK (in general), and that the current guidance
> on whether or not software is patentable is considered wholly inadequate
> (which I think we all agree it is).

The UKPTO people have been lobbying Brussels for many years.  They were
among the first to blur the borderlines, and even in the EPO they were at
the forefront of those pushing for unlimited patentability.  This was in
part due to their lack of systematic thinking about patentability.  Like
in the US, the British caselaw seems to have evolved on an unsystematic
case-by-case basis.  Pragmatism and good manners, which seem to be british
virtues, sometimes make people conservative and analogy-oriented stand in
the way of thinking systematically about philosophical questions.  Sorry
if I step on anyone's foot, but maybe some people in britain could become
receptive to this criticism.  The UKPTO and government people with whom we
have spoken were rather disappointing in this respect so far.  They seemed
content with confused but gentelmanlike thinking.

> I still see the problem as a European one. I haven't seen any evidence
> which supports the claims which were posted to this list, which makes
> the UKPTO/BSA/UK Govt. appear to be in the same league as the Bilderburg
> group. I would welcome further information though - if anyone can show
> me that the UK Govt. is pushing software patents in Europe, then I will
> be a vocal lobbyist against this action.

(1) The British have been the only major country that expressed suppport
for the CEC/BSA approach at the 2002-03-01 meeting.

(2) See the statement of Robin Webb which he published on the morning of
the EU/BSA directive publication.  This statement presses for a defacto
unlimited patentability, even if in words it doesn't say so.  Nobody else
in Europe has done this.  The Dutch, German and Danish parliaments have
held critical hearings and demanded some real limitation of patentability,
although their approach has mostly still been tentative.

You must realise that the "as such" clause is only explanatory and
self-evident.  You can get a blessing for saving a child's life, even if
that involved killing the dog that was biting the child.  But you don't
get a blessing for killing as such.  That is common sense. The as such
clause could as well be deleted from the law.  It has been inserted as a
kind of diplomatic calming-down action in 1973, reassuring people that
the EPC wouldn't be interpreted in an unreasonably extensive way.  But it
doesn't justify any of the wordplays that the patent lawyers, not only in
the UKPTO, have been playing.  They are actually completely correct in
identifying a problem in the "as such" clause.  Their approach is also
more well-styled than that of their british brethren in Brussels.  It only
needs to be corrected in a simple way: let's delete the "as such" clause
so as to give courts a signal for change.

(3) The UKPTO are continuing to organise propaganda rallies for software
patentability, see the ibc-uk.co conference of June 18-19.  They refuse to
let any serious opposition representative speak there.

> But, I don't see it. It still seems (to me) to be a European issue
> which we must attack as Europeans at the European level, all of us.

Indeed the Europarl level is very important.  But so is the British level.
The British are the main national force that is actively lobbying for
software patents in Brussels, and their friends are the key people in the
Brussels establishment that produced the current directive proposal.

All this has apparently become possible due to a special british climate,
characterised by

 - strong grip of the UKPTO on governmental patent policy
 - legal and cultural traditions, affinity to the USA
 - failure of most people to recognise the UKPTO's double talk
   in its summary report of the consultation
 - lack of an organised opposition, weakness of free software

I am usually quite an admirer of british culture and british people, but
in this case we are witnessing some of the shadowy sides.  Fortunately it
takes only a fairly small group of conscious people to overcome the
problem.  "All it takes for evil to prevail is that good men do nothing",
as Edmund Burke said.  But we can mobilise the necessary few good people,
and if we need to improve the rhetoric on some of our websites, I'll be
glad to draw inspirations from your hints.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/