Marcus Brinkmann wrote:
On Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet wrote:
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
If you thing of a program to be one thing, and an embedded device with some in-core program doing the same thing, and treat them differently under patent law, then that might be an acceptable compromise, although it would be very difficult to work out the details.
Probably. You'd have to make it very clear that the program by itself is not covered by the patent.
And please also realize what you just said. You said that everything will be patentable. Is this truely what you want?
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
The thing is that an invention means that we learn something new about the forces of nature.
This I disagree with. I believe this is an outdated concept in patent law. How does it cover new medicines, for example?
Now, you are right in that the EPOs action is the way you described it rather than me. However, I would hope that you also agree with me that how I said it is how the law requires it to be.
I personally believe that all technical inventions should be patentable, and that it should not matter whether software is involved. And I also believe that the criterion should not be whether a novel controlled use of forces of nature is involved, but rather whether the invention as a whole exhibits a technical effect. Even if the effect is not novel, or does not learn you anything about a new use of natural forces.
Based on this, I do not really disagree with the EPO's current practice. They should not have allowed claims to programs on a carrier, because those claims do not cover a technical invention but rather an information structure.
It's interesting to note by the way that the Japan's patent act defines a patentable invention as a highly advanced creation of a technical idea utilizing a law of nature, and they allow claims to computer programs by themselves. So apparently in Japan creating a computer program uses a force of nature.
Kind regards,
Arnoud Engelfriet