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

[PILCH Hartmut]

> > 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;

What clarification?
Are you referring to certain UK court decisions?

> 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.

The "technical effect" talk came into the EPO guidelines in 1985 and
then was further expanded by the Vicom and Sohei cases in 1986.
I'd rather call that confusion than clarification.

> 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.

This status quo is equal to US practise and people didn't ask for it.
They asked for the perceived status quo of a law which does not
allow software patents in Europe and has so far prevented them from
being enfored upon people's businesses and lives.

> > 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?

Yes, we have heard this reported through reliable channels.

> 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.

I am still not so sure of that, see below.

> > 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.

They proposed a change in the law.  This change would render all the
exclusions in art 52 moot, as they are now, due to the "clarifications" of
1999 or whenever.

> The EPO directive is not the UK draft.

But it has received the warm support of the UK representatives in
Brussels.

> > > 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.

The directive draft (and the UKPTO proposal) is a mere transcript of EPO
practise.   The UKPTO advocates making this practise binding for Europe
and creating no rules whatsoever that could prevent "bad patents" from
being issued.

Judge the tree by its fruits.  That is not a strawman argument.

> > 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?

A new way of laying out wires, circuits etc and using magnetism and other
forces of nature could be patented.  An algorithm achieved by that way (or
by software) could not.

This is a very old distinction.  We need someone to translate the text of
Gert Kolle from 1977

        http://swpat.ffii.org/vreji/papri/grur-kolle77/

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

No, 180 degrees opposite.
You are talking about claimed objects, I am talking about inventions.

> Having made something in software does not
> constitute an inventive step, so software as such is not patentable.

I am talking about invention, not "inventive step".

An abstract calculation rule, however applicable it may be to electronics
or machinery, is not an invention.

An invention is a teaching about forces of nature.  It imparts new and
non-obvious knowledge about how these forces work.

> > 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 :)

The UKPTO is actually taking up the right point here, although their
proposal would lead in effect to total patentability.

> > 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.

If we can't define "technical", then we are not going to get any
clarification, and we'd better just go on without a directive and without
a change of art 52.

But, as explained before, "technical" and "technical invention" are,
unlike "non-obvious" very sharp concepts that can be and have been
defined.   Please read

        Dispositionsprogramm
        http://swpat.ffii.org/vreji/papri/bgh-dispo76/

        The Price for Dismantling the Concept of Technical Invention
        http://swpat.ffii.org/stidi/korcu/index.en.html

We can force the courts to resume the sharp delimitation of technical
inventions by simply deleting the much-abused "as such" clause.  It would
be even better to write the definition of "technical invention" into the
law.  Without all this, the EPO/UKPTO/CEC/BSA talk about "clarification"
is only a pretext for legitimising a directive which otherwise would have
not legitimacy, but which they need for *changing* rather than clarifying.

If we follow the UKPTO proposal in replacing "as such" by "without
technical contribution", we will however further de-clarify the law and
allow anything to be a patentable invention.  The items in art 52(2) will
then at best have an effect on the claim wording, and probably not even on
that.

-- 
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/