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

[Alex Hudson]

On Sat, 2002-03-09 at 10:39, PILCH Hartmut wrote:
> > > 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?

Jurisprudence and the UKPTO practice note:
http://www.patent.gov.uk/patent/notices/practice/computer.htm

> This status quo is equal to US practise and people didn't ask for it.

Status quo of the UKPTO is not US practice at all - have you any
evidence to support this assertion? And I don't mean UK patents by proxy
via the EPO.

> > 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 published draft of the UKPTO doesn't render the exclusions moot. You
have already pointed out that dressing up a software program as hardware
(ROM, for example) is not patentable; the Art52 clarification is exactly
the opposite point. The patentable idea is not related to the carrier.

> > The EPO directive is not the UK draft.
> 
> But it has received the warm support of the UK representatives in
> Brussels.

Have they published anything to this effect? I was under the impression
that the EPO draft was under review?

> 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.

Okay, this is exactly what I was thinking of. Let's say I generate a
circuit which does things in an entirely novel fashion, and it has one
analogue input and one analogue output. If I patented that, and the
'technical effect' clause was removed, someone could infringe on the
patent easily by connecting the inputs and outputs to a computer and
modelling the circuit in software (via SPICE, for example). How would
that be prevented? The more obvious corollary of this is that DSPs
become entirely unpatentable for a start, and I see no reason why that
couldn't be extended to all of electronics, all of which can be
simulated in software.

Note, it is not the simulation software which is infringing, but the
data it is running. So, the 'technical effect' clause would not outlaw
simulation software. Do you see the argument I am confused about?


> > > > 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.

Probably this is the basic difference - the technical effect clause is
supposed to prevent software inventions, not software as a claimed
object. Is that a fair assessment?

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

The fact that we're arguing shows that this is obviously subject to
misunderstanding. But, I don't agree that the UKPTO draft proposal would
lead to total patentability. Are we talking about the same proposal?

http://www.patent.gov.uk/about/ippd/issues/software.htm

Cheers,

Alex.

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