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

[Alex Hudson]

On Sat, 2002-03-09 at 18:02, Xavier Drudis Ferran wrote:
> 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

I used to know that feeling :-)

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

The draft EPO directive? I'm not really concerned with that; we're
talking about the UKPTO. As I've said before, I know the EPO has
problems.

> 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.

Okay, let's take your case of the missing FET. We assume that the FET
isn't invented, and that the current emulators don't know about FETs.
And let's say someone patented the FET. Okay, a circuit with a FET
cannot be simulated. But, what happens if I rewrite the simulator to
include FET simulation? Is that a patent infringement? If so, that means
that you allow software patents - the patent holder would be able to
write the simulator without any problems. So, is it not an infringement?
If so, that allows you to by-pass the discovery of FETs by emulating
circuits which make use of it (sounds an odd thing to do; but people
already do this - for other reason - see Roland VGuitar, etc.)

> 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. 

We kind of agree, then. I didn't say that software should be patentable,
though; I highlighted it as a problem with the argument. I suggested
that if you do away completely with "technical effect" (or whatever
variation), you essentially destroy a raft of other non-related patents,
electronics, etc. 

Personally, I don't believe software should be patentable, at all, under
any circumstances. However, this is nothing to do with patents only
applying to 'technical' inventions - harnessing nature, whatever. The
costs of software research are vastly smaller than other areas (such as
electronics), and thus doesn't warrant patent protection as far as I'm
concerned. I also find the argument about what is "technical" and what
is not to be confusing, contradictory and ultimately unsupportable.

Patenting, like copyrighting, should not be a right, but a gift. We
allow copyrighting to benefit society as a whole; patents should work in
the same way. Patenting software does little if anything to benefit
society, and (I think all of us would argue) actually does damage.

> 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. 

You're essentially saying what I asked earlier: would it be fair to
state your position as allowing software as a patented claim, but not as
a patentable invention?

> 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.

This is the argument I find contradictory. Do you have any examples of a
part software patent which you would consider acceptable? If an
invention was 99% software, would you think it patentable? And if the
system was patentable without the program, how could that program be
included in the patent claim?

> Maybe there is a cultural wall between us. I can't understand case law
> systems.

Remember, the case law doesn't define the law. The law is defined - it
just leaves parts of the implementation to the courts. The current UK
patent law states that you cannot patent art, speech, games, software as
such - "technical effect" applies to all of these, not just software,
and is intended (as I read it) to say that the you should be able to
build inventable items using computers as you would a lathe or any other
tool. 

Cheers,

Alex.

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