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

[Alex Hudson]

On Sat, 2002-03-09 at 09:09, PILCH Hartmut wrote:
> > 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?

Most of the pages that talk about the UKPTO come across as anti-British.
Talk about the "gentleman-like good-mannered aspect of British
pragmatism" is somewhat patronising... that's just the way it reads.

> 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.

The clarification of the current law was done in 1999; the consultation
finished only last year. The "technical effect" guidelines (as drawn out
after the 1997/98 IBM EPO decision) are not based on the consultation.
There are two separate issues here - the consultation (which resulted in
people asking for the status quo) was done after the clarification of
the "technical effect" came into force.

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

The UKPTO is the Government. UKPTO does not campaign itself; that would
be done through the offices of the DTi or a similar department, I
imagine. I also don't see where the evidence for the UKPTO in favour of
the Brussel's directive is - true, they _did_ issue a draft on Art.52.
AFAIK, the proposed draft is somewhat different and I don't believe they
have issued a statement for or against it yet - is there any evidence to
the contrary?

> > 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.

None of us want software patents. Please don't misunderstand my
criticisms as a big difference in opinion; I'm trying to analyse the
claims that you have made by finding supporting evidence. Don't mistake
playing Devil's advocate for anything else ;)

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

We keep switching between the EPO and the UKPTO, and this is confusing
the issue. We know the EPO has problems; but my question was about the
UKPTO and _British_ law. The draft directive the UK Government published
concerning Art.52 was supposed to clarify, not amend. That means no
change in the law. The EPO directive is not the UK draft.

> > But software isn't patentable, so that backdoor doesn't exist.
> 
> Everything in the EPO horror gallery is made patentable.

Again, I was only talking about the UKPTO. Trying to say that the
"technical effect" clause allows software patenting because the EPO
issues bad patents is a straw man argument; EPO isn't governed by
British law, although harmonisation means that the reverse isn't
necessarily the case.

> 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.

Could you give an example of a patented piece of electronics that could
not be represented in software? Or are you saying you would do away with
patents of electronics?

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

Same thing, surely? Having made something in software does not
constitute an inventive step, so software as such is not patentable.

> 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.

We may well agree :)

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

That depends on what you mean by 'define'. It's a run-time variable; the
law doesn't define it for a reason. That's how British law works in a
number of areas. I don't believe 'technical effect' is meant to be the
main device which limits patentability though; the scope of
patentability is defined by law. It's the same as 'non-obvious' - you
can't define that, either, it's a case-by-case thing.

Cheers,

Alex.

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