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

[PILCH Hartmut]

> What you need to keep electronics, mechanics whatever patentable but
> let software, logic, bussiness rules, literature,etc. not patentable
> is criteria that studies where is the new contribution of the patent,
> not its effects.  And the contribution should be technical, so
> "technical contribution" is not bad aas such ;op.

Indeed "technical contribution", as you construe it, is another word for
"technical invention".

The EPO/CEC/BSA/UKPTO made the mistake of doing away with the "invention"
criterion which is defined by art 52 and instead putting some "technical
character" requirement into the non-obviousness ("inventive step") test,
which is regulated in art 57.  Actually I think they are really confused.
They have not understood and perhaps do not want to understand the
dual structure of the orginal article 52 which requires that

(1) there be an invention (= technical invention = technical contribution)
(2) this invention be novel + non-obvious + industrially applicable

They are trying to do away with (1), and they are also saying explicitely
that the novel aspects need not be technical.

> The problem is when you don't define "technical" as in
> DispositionnenProgram (sorry, one day I'll learn to spell it), but you
> leave it open or, horror, explicitly put software (or anyother logical
> achievement) in the technical fields.  Then all contributions become
> technical, and everything becomes patentable.

Indeed, something else that many people don't understand is that computing
jargon is an equivalent to all logics, and it is *the* equivalent that
matters today. The computer is the universal logical device.

> > 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.

> I don't know any other criteria that separates what I want patentable
> and what I don't. And I don't want to leave that open when there is at
> least a criteria we can use. Giving an explicit list of what is
> patentable and what not was tried in the EPC and has been abused.
> Besides, it is much more difficult to work out such a list and avoid
> contradictions.  I find the technicity criteria easier.

Indeed we need both, and the current directive proposal (as well as the
UKPTO proposal) wants to remove both.

>  What do you  find contradictory exactly?. Confusing?. 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.

> I agree. A patent is a deal between the state and the inventor, not a
> natural right of the inventor. We must make sure the deal is
> profitable for society. And that is all about economic considerations
> (and also basic rights losts due to the patent).

> But I don't think you can tell the patent office to make an economic
> assessment of each particular case and see whether it is worth it,
> without any guidelines.  I don't know about the UK, but I think a
> patent office should be civil servants not elected politicians, and
> they should apply cear criteria, not decide on economic policy. You
> must give the patent office criteria to decide what is patentabe and
> what not. We agree that software shoud not be patentable, even if only
> because it is a bad deal. So we better find a good criteria to decide
> what to patent. I think the harnessing nature idea works well to make
> that choice. We coud also leave it at simply the exclusion of
> software, as in the EPC, as long as we can make sure it is not ignored
> by word plays: "sure, software is not patentabe,but look, I'm only
> patenting software to run on a computer, not software as such". "sure
> software is not patentabe, but I'm patenting ways to solve an equation
> through a computer, and that is patentable2,and blah, blah Or more
> genuiney: what do we do with VHDL ? For me it is software, but you may
> not call it so. It is logic, after all. So we better exclude logic and
> that will save us trouble

Everything extremely well said, better than I could and than most of what
I have read from anyone.

If someone could collect all this into a FAQ we would be a step ahead.

Meanwhile I have improved the UK page somewhat

        http://swpat.ffii.org/vreji/gasnu/uk/

and would appreciate your help in improving it further. Thanks to those of
you who have already helped!

-- 
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/