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

[PILCH Hartmut]

> > 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.

I have not searched through such patents but I am confident it would take
only a short time to produce the same horror gallery as that of the EPO.

The page you quote above shows that they have basically adopted the EPO's
standards, and they have playing the same word-games with "technical",
where "increasing the processing speed of a computer" is enough to make
something a technical invention.  They have gone even so far as to accept
program claims, and they were the first national patent office in Europe
to do that.

> > > 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.

No, the "clarification" says that any "technical contribution" (meaning in
fact logical contribution dressed up in computing jargon) can be claimed
even as a computer program or data 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?

As I wrote, we have reliable sources who reported this to us.
And it's not the first time.  It was always the British delegation who
encouraged and pressed Bolkestein's people to move ahead, starting from
the Brussels meething of 2000-12-19.

> > 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.

That may or may not be a technical invention.
If your novel fashion consists only in some novel form of logic, then it
should not be patentable no matter whether expressed in a program or in
wires.

> 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?

If the circuits could be modelled in software, then there is probably no
technical invention.

Moreover what is the problem if a few patents become circumventable?

> 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.

Then it seems that the forces of nature in the field of electronics have
already been fully harnessed and there is no technical inventing left to
do.  Isn't that good news?  Why should be be concerned about the UKPTO not
having enough business to do?  They should perhaps be concerned, but the
UK government shouldn't.  That's exactly the point I'm trying to make.

> 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?

If indeed there is some inventive physical process which can be separated
from the logic (software), then that would also be patentable without the
"as such" or "technical contribution" or whatever other formula.

> > > > > 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?

I don't understand.

> > 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

Yes.
They are saying that computer programs can be patentable if they make a
technical contribution.  Thus the whole article becomes meaningless.
Previously it limited the scope of things that can be inventions.
Now it says that anything can be an invention, if only it can be claimed
to be "technical".  Moreover, computer programs are deemed to belong to a
"field of technology".

This is the same as deleting art 52 and leaving only art 57 in the
convention.

-- 
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/