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

[PILCH Hartmut]

> > 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.
                                    ^^^^^^
could you give some examples?

> > They are not supposed to have any say in what law should be.
>
> But they do deal with the interpretation of the law.

The consultation was about what the future rules should be. The UKPTO has
however played word games with the existence of 2 parallel status quos.
Most people want status quo number 1, meaning no software patents.  The
UKPTO aptly interprets this as status quo number two, meaning the current
practise of the EPO, which is, as far as the interest of software creators
and users is concerned, 100% that of the USPTO, any alleged differences
being a means of confusing the debate.

> > 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 UKPTO is wearing the government's hat and pressing for the Brussels
Directive as well as for other means of e

> > > + 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.

I tend to believe that we just should for the time being see that we find
someone who has understood the problem to cooperate with.   We can't
persuade everybody.  When people don't want the same thing, there is no
point in talking about strategy.

In short again: The directive removes all legal limits and allows the EPO
to do what it wants.

Patent inflation is already running at full pace, we even quantified it at
something like 20-30% p.a.

> > > + 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.

Everything in the EPO horror gallery is made patentable.
OK, you don't call that software.
Call it rules of logic.

> 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).

You would keep all patents that enlarge our knowledge about how the forces
of nature work, also in the electronics area.

But you would not allow material embodiments of new logical rules to be
patented.

> The law says (I believe) that software is not patentable, as such.

The law says that computer programs are not inventions.
Computer programs are instructions usable for the operation of a logical
device, the universal computer.  They are math.  See

        http://swpat.ffii.org/vreji/papri/epo-gl78/

for how the EPO examination guidelines of 1978 understood programs for
computers and the "as such" clause.

> 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.

All software has a hardware equivalent.
All logics can be materialised into physics.
The program on the disk is a materialisation in the same way that a
materialisation into a circuit or an analog device according to known
materialisation rules is a materialisation.
You can get a patent only for unknown materialisation rules.

The EPC says that a programming solution is not an invention.
Only a solution with physical forces as a constitutive element is an
invention.
And the invention must be new + non-obvious + ...
Therefore you cannot just dress up a programming solution (algorithm)
in hardware.

> 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.

The as such clause is explanatory, see the EPO guidelines of 1978.

Distinguishing between an "as such program" and a "technical effect
program" is grammatical nonsense.  No program is an invention according
to the EPC.

I am not against the "as such" clause, but I think it would be a good idea
to demand its deletion.  It has invited misunderstanding / abuse.

> > 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.

If you cannot strictly define it, then it is useless for limiting
patentability.

However, there is a strict definition, which the UKPTO has been shying
away from:

 technical: related to harnessing the forces of nature
 technical invention: teaching on how to harness the forces of nature

Technicity has nothing to do with the question of non-obviousness
(inventive step).  A term such as "technical non-obviousness" or
"technical novelty" is quite meaningless.  But the term "technical
invention" is not.  Which is why the UKPTO and their friends in Brussels
are doing everything to delete the latter from the law.

> > 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.

"Technical invention" in its original meaning is the traditional and the
only known-to-work way of limiting patentability.

By failing to appreciate this concept but nonetheless continuing to use
the word, the UKPTO is deceiving public opinion.

-- 
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/