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

[Alex Hudson]

On Sat, 2002-03-09 at 03:40, Xavier Drudis Ferran wrote:
> So you may believe Hartmut or not, or you may believe him and yet not
> feel well armed enough to charge against the UKPTO. 

I'm open minded about it. I'm not convinced UKPTO are an authority
sufficient to warrant lobbying; and I don't believe Hartmut/FFII promote
their cause at all well through their webpages, which I actually find
grossly offensive, verging on the racist. I presume, though, that this
is more to do with the author not having English as a native tongue.

> They are not supposed to have any say in what law should be.

But they do deal with the interpretation of the law. 

> So there should still be reason to believe the government can be
> persuaded to take their own decisions and don't accept the UKPTO idea,

UKPTO will, at most, have offered an interpretation. The UK Government
can, at any time, press the UKPTO to change it's interpretation or
change the law such that the interpretation no longer holds. The UKPTO
is a branch of the UK Government, though - it's a civil service AFAIK.

> > + the UK is in favour of 'patent inflation';
> I'll try to find some minutes from that March the 1st 2002 meeting, but
> I doubt I can.
> If I could find their support for the directive that would be enough?.
> Or do you think the directive proposal is not leading to patent inflation?

I haven't read the directive fully, so I don't know. Having briefly
looked at it, I didn't believe it would lead to inflation, no. 

> > + the 'technical effect' requirement is software patentability through
> > the backdoor.
> That seems obvious to me. Any limitation criteria that is undefined will 
> lead to no limits. And once you accept that software is a field of
> technology, it is difficult to claim that any program does not cause a 
> technical effect  when  loaded on a computer. 

But software isn't patentable, so that backdoor doesn't exist. To me,
this seems pretty clear. If you were to rule that no software
implementation could infringe a patent, no only would that knock out
software patents, it would knock out any and all analogue and digital
electronics patents, and probably a lot of other fields as well
(particularly, anything a computer could simulate). 

The law says (I believe) that software is not patentable, as such. That
doesn't prevent something new and inventive being patentable since it is
wholly or part software, although I think my test for this would not so
much be a 'technical effect', more that there is a non-software
equivilent that is also patentable.

Essentially, the arguments are twofold. Firstly, that the inventive step
is not a high enough threshold at the moment I think probably most
people would agree with that. Hartmut's claim, though, is that any
patent that would be infringed with the 'as such' clause, but would not
be infringed with that clause removed, should not have been granted in
the first place. That's the claim I'm having trouble with; I don't see
that rule holds 100%. The example I have in my mind is communication
theory and signal processing; although I can't think (off the top of my
head) of an example of a 'good patent' we could agree on that would be
bypassed without the as such clause.

> Well I don't know about the UKPTO,but if you've read all those documents 
> and still don't see the technical effect / techinal contribution theory 
> is not enough without a clear definition of "technical", then your brain 
> works different than mine, and we may need to talk a bit more.

I have trouble applying a strict definition of 'technical' to something
that is supposed to be novel and non-obvious. I don't see how it can be
practically defined. I think the system of case law is better - we know
what is isn't, essentially. 

> Ok. Then maybe we can build on what we agree on?. The government needs
> to make clear that software is not patentable, whatever the UKPTO says.

I think I want to research more what the practical implications of the
'technical effect' are - I'm surprised that it is being seen as allowing
any software patent, because I don't think it does. But I would suspect
FFII have looked into this a lot more than we have, so I'm worried that
there may be a problem here. 

Cheers,

Alex.

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