Marcus Brinkmann wrote:
On Fri, Dec 13, 2002 at 01:29:54PM +0100, Arnoud Galactus Engelfriet wrote: [about the meaning of "as such"]
No, it means that a computer program by itself cannot be patented. A hardware device that contains some software can be an invention, even if the invention resides in the software.
That's what the EPO wants it to mean, but that is not supported by the law and any rational interpretation of it.
No, the EPO seems to think that even a program by itself can be patented. I believe "program on carrier" is not statutory subject matter.
It is the EPO which invented the term "technical effect" to justify granting software patents, but the distinction between "a program as such" and "a program with a technical effect" is not a distinction you can derive from reading the law.
A program as such is an example of a thing without a technical effect. Hence it is unpatentable.
Keep in mind there is a difference between "invention" and "having an inventive step" in the EPC.
Can you remind me of that difference?
Article 52(1) says
European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
I can only conclude that being an invention is a requirement separate from the other three. If something is not an invention, then no patent shall be granted for it. Even if the something is new and involves an inventive step.
Looking at 52(2), it starts with "the following in particular shall not be regarded as inventions within the meaning of paragraph 1:" So you have to determine whether something is to be regarded as an invention when deciding whether to grant a patent for it.
Looking at 52(4), you see that medical treatments are deemed to be inventions which are not susceptible of industrial application within the meaning of paragraph 1. So apparently a medical treatment is an invention but it is not industrially applicable.
Sorry, I meant software-based inventions. I.e. inventions which can be at least partially realized using software.
Can you give an example? I think it is crucial to find out if the invention is in the software or in the hardware.
I think it is totally irrelevant whether the inventive aspect is in software or hardware.
If it is just some new hardware invention with some software (inventive or conventional) slabbed to it, I have no concerns. If it is software with just some "technical vocabulary" slabbed to it, to make it look more technical, I have a fundamental objection.
Let's say I have a car engine in which fuel injection is regulated by a valve coupled to a sensor. This way the car engine operates with a certain efficiency, because the signal from the sensor can open and close the valve. The inventive aspect is in the use of the valve and sensor. Is this an invention? I would say yes. And if the prior art does not teach using valves and sensors to regulate fuel injection, then the invention is not obvious and hence involves an inventive step.
Now, I come up with an additional invention. I am going to couple a programmed chip to the valve. The chip allows a much more precise evaluation of the output of the sensor so the valve can be opened and closed to allow a much more efficient fuel intake. Assuming the invention from the previous paragraph is the prior art, the inventive aspect would be in the use of the programmed chip. The chip is known by itself. Is this an invention? I would say yes, because just like the previous invention it provides efficient fuel intake.
How would you evaluate these patent applications?
Computer programming is not a field of technology. Just as math isn't.
Programming is applied mathematics, just like engineering is applied physics. Applied sciences are patentable subject matter.
Irregardless of whether programming is applied math, I have never heard before that all applied sciences are patentable subject matter. I think you just made that up.
It's what I believe is the realm of patent protection.
Technical effects: Reducing the bandwidth between clients and servers: EP 407 026
Using a second, separate channel to authenticate someone makes a system more secure: EP 416 482
Avoiding the need for storage on a client system in a Web shopping system: EP 784 279
The above sound just like what we call "software patents", ie, patents on a program as such, rather than a technical invention that teaches us more about the forces of nature.
That's probably correct. I do not think any of these can show a novel use of natural forces.
For example, using an out-of-band channel to receive a password is a technique that's known per se. But it achieves the technical effect of making the system more secure. The invention would probably be obvious, unless they were the first to come up with the concept of out-of-band channels.
Some more examples. Saving memory, increasing speed, improving security, operating a user interface (T 236/91, T 59/93), configuring the operating system (T 265/92), coordinating and controlling internal data (T 6/83), or assisting in solving diagnostic problems in data communication (T 216/89) all are technical.
If saving memory is a technical effect, then it's not a far step (certainly only an argumentative step) to either accept that all programs have a technical effect, or that you can every program technical by applying it to some specific technical problem (I guess every patent attorney who is worth his money is able to do so easily).
I think there is a difference between "technical effect" and "solving a technical problem". Technical effect makes something an invention, solving a technical problem [in a nonobvious way] makes something inventive.
And yes, all programs exhibit a technical effect. This is why the Board came up with the "further technical effect", as otherwise all programs would be patentable. So only if the saving of memory is a "further" technical effect is the program patentable.
This is exactly what I said above: the distinction isn't a distinction. All programs are either programs as such or programs with a technical effect or both.
Programs that lack a further technical effect are programs as such. That's what the EPO currently thinks.
Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data.
This is even scarier, and if you can write the above pargraph with a serious face you are probably lost to the pro-software-patent lobby and need to be rescued :).
The above paragraph reflects current EPO practice, and if you prosecute patent applications before the EPO you need to be able to understand this otherwise you are doing a bad service to your client.
Basically, what you just wrote is that a compression algorithm is technical if it is applied to an image and it is not technical if it is applied to text.
The image would be a representation of reality. For example taking an X-ray picture or compressing video. Then you are manipulating (representations of) light rays or electro- magnetic signals. That's technical.
I should clarify that to make it clear that "text" means the contents of the text. The decision in question was about making text more readable/understandable by replacing difficult words with easy ones. An algorithm to make ASCII characters from a scanned image would IMO be statutory because it is technical.
Sorry, no that is not what I meant. I didn't really think that you are a pro-software-patent person. You might be, but you never said that, so I certainly don't assume it. You could just be playing devil's advocate, and it would be all the same for me :)
Ok. I am not sure whether I would be "pro-software-patent". I think I'm somewhere in the middle, because I believe a device with new behavior should be patentable even if the behavior is caused by software - as long as the device is technical and the new behavior is novel and nonobvious. New nontechnical behavior is by definition obvious.
I believe that programs by themselves should not be statutory, and the making & distributing of programs should not be an infringement. But selling devices with the program loaded in it should be an infringement. Otherwise it is impossible to do innovation in fields like CE, because today almost everything is realized with software. Rendering movies on a TV with higher quality (100Hz, natural motion, etc) requires a lot of investments, and such innovation should be encouraged.
However, I hope you are against software patents, and that you help us to fight them, because they are harmful for our economy and personal freedom of expression.
I think I disagree with your definition of 'software patent' because, as a computer scientist, I am unable to think of any reasonable definition of 'software'. It is function that matters. Implementation of the function is irrelevant.
Kind regards,
Arnoud Engelfriet