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

[Xavier Drudis Ferran]

Excuse me for not following this thread as well as I should. I'm not at
home,
and I only have a 486 with a 33K modem a broken hardware clock that
seems to 
fool fetchmail into thinking all mail in my ISP is unread so  that it
keeps 
refetching old messages, and the space bar is  not very responsive. I'll
join 
the list when I get back home, but for now I may miss some  post (I've
browsed 
the archive, though). 

Alex Hudson wrote:
> > > 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.

Please read the directive in full. And then try to find an example of
software 
which would not be patentable under that directive. 

> 
> > 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?
> 
I think the problem is not whether you can simulate a new physical
invention 
with software. The question lies in whether the patent gives us new
insights
in the physical world. A rule of thumb would be: If your new invention 
can be  simulated with existing simulators, then there is nothing in it 
that wasn't known already, you just happened to combine the existing
knowledge 
in another way. We don't want to reward that with a limited monopoly. 
We want to reward people who invest money in experiments and research
and 
comes up with discoveries, unknown and useful properties of nature that 
we wouldn't have found without their expensive endeavour. So we create
an 
incentive for them by letting them patenting it. 

For instance. Imagine BJT transistors are known but FET transistors are
not. 
People know howa BJT transistorworks, so they can put  any program you
can 
write as a circuit combinig many known transistors that will show the
same 
behaviour. A silicon compiler can do that. That circuit is not worth a
patent. 

But if you discover FET transistors, that is not something that was
already 
in the available knowledge. You just discovered you can use
electromagnetic fields
to control the flow through the component or whatever. That took you
costly
experimentation and research, and possibly you won't do that (or not so
often)
without the monopoly incentive of a patent. So we may have a deal. 

When you (was it you?) says that software that can circumvent a device
should 
be patentable  (please correct me if that  is not what was meant), then
all
software becomes patentable. All software can be implemented in hardware
or
mechanics, or whatever. 

It doesn't matter whether you do a summation algortihm, an adder circuit
or 
a Pascal calculator (IIRC it was a mechanism in which many wheels
allowed
the gadget to add numbers). Adding should not be patentable just because 
electronics or mechanincs can do it. Just like the fact  that the
Analytical 
Engine is a machine does not render infinitesimal calculus patentable. 

Does that mean that any invention containing software is not patentable. 
Not. If the invention contains a program but also gives us new insights 
in how to use nature to our benefit, the invention should be patentable. 
But not the program. You wouldn't patent the program. You'd patent the 
whole device, and I could use the program to do whatever if I didn't
built 
the device. But you cannot patent a device in which all new insights 
are in the software that runs it and it tells us nothing new about
nature.
So the fact that software causes a "technical effect" is not important, 
the fact that there is a "technical contribution" might be important 
if you define technical to exclude logics. The directive does not,
because 
it says software is technical. 

>
 > > 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.
>
HArtmut answered already, I think.  
Programs  are not patentable. Inventions containg programs might be 
patentable, but you would not be patenting the program as such, you'd
patent 
it as part of a bigger system. And that system should be patentable
without 
the program. That is the meaning of as such. THe EPO pretends that as
such 
means something like "abstract algorithm" or "program listing" and they
pretend 
that is not patentable and running processes are, or program products. 
But since there is no way you can use an abstract algorithm or a program 
listing without running it, that is pretending to say that no program is
"as such".  


> 
> > 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.
> 
>

Maybe there is a cultural wall between us. I can't understand case law
systems.
But I think you need to be able to set a limit in law. Otherwise nothing 
prevents the UKPTO to grant patents on paintings, novels, legal
arguments, 
sexual techniques, or dances. People must agree what is patentable and
what isn't,
and put it in the law. The definition must be as precise as possible and
the fact
that inventions are not yet discovered is no excuse, just like the fact
that 
a child yet to be born does not exist means not that laws should not
protect those 
who are born tomorrow. They cannot know them, but they must account for
them.
Anything else is anarchy. 

By the way, just curiosity. If "technical effect" has nothing to do with
subject 
matter, then what function does it fulfill?.