Re: Gregnews: US report proves EP lies

The discussion is certainly about what defines the borders of
what is patentable.  However, while "technical"-ity may be the
way the legal discourse has attempted to address that question,
that is only foundational in a limited legal discourse, a
discourse that, by using the term "technical" and its cognates,
doesn't really offer any clear explanation of *why* some things
are inappropriate subject matter.

One of the most important reasons for excluding math is that it
is pure; it is not at all about any particular concrete or
empirical "achievement" that anybody can point at as "somebody's"
"invention" -- anybody could have thought of the same principle,
independently of any concrete invention that may embody the
principle.  This is really the fundamental, essential nature
reason why algorithms for logic processors are inappropriate
subject matter for patentability.  The controllable forces of
nature doctrine is really an oblique way of demarcating pure
things as not patentable.

Subject matter exclusions are actually more foundational, because
they represent the exclusions of certain things by their nature,
even if the legal tradition has not yet done a good job of
explicitly acknowledging that nature.

You just have to argue about it in other ways because 1) the
legal tradition hasn't yet really fixed the principle right,
choosing instead to say some things are "not technical," without
a clear reading of what that really means, though the
"controllable forces of nature" doctrine does a good job for now;
and because 2) there are lots of vested players doing the Gregbot
thing, and their messages are favored by the captains of the
media so far, much more than the undeniable truth.

The main reason why FFII got the penetration of its various
messages was specifically because instead of the arcane
legislative and legalistic abstrusities that characterized the
FFII site at one point, you instead focused on highlighting
contradictions and blowing those wide open.  That was the key to
your success.  And you almost got everything you could have
gotten from that approach.


Seth



Erik Josefsson wrote:
> 
> Richard M. Stallman wrote:
> 
> > I agree that a generalization is going on here, but I am not sure it
> >  is wrong.  It also isn't new.  The idea of the "universal machine"
> > that can emulate any other "machine" goes back to the beginning of
> > computing theory, before real computers.  So I don't think that it is
> >  inherently a misinterpretation of the term "technology" to include
> > software or its uses.
> 
> It is misleding in the context of patent law to use the term
> "technology" for software.
> 
> > The problem only comes from the criterion of "technical character"
> > which has been used in various actual or proposed patent laws.
> 
> I don't understand what you mean. "Technical character" is the first of
> the four requirements for patentability.
> 
> > I don't think this gives a basis to say it's erroneous to use the
> > term "technology" for software.  It is only a basis to say that use
> > of the term might lead to a harmful consequence in interpreting these
> >  laws.
> >
> > However, I don't think that the public's understanding or use of
> > "information technology" has much effect on the danger.
> 
> That depends. I'd say the term "information technology" is even more
> dangerous for the public's understanding of the software patents debate
> than the term "intellectual property".
> 
> In Europe we can easily avoid the term "intellectual property" in the
> patent discussion as patents are more properly labeled here as
> "industrial property".
> 
> I think it would help if you introduced "industrial property" in your
> words-to-avoid-guideline. It would also help a lot if you could use the
> word "data processing" more often.
> 
> > The cases where I have campaigned against terminology are where the
> > terminology shapes the opinions of the public, or of the
> > legislators--of the people we can hope to convince.  When terminology
> >  gives them the wrong idea of the practical effects of software
> > patents, explaining what's wrong with the terminology can help us
> > clear up their mistaken conclusions.
> 
> True.
> 
> > But I don't think that the question of how to interpret "technical
> > character" has much effect on whether the public (or legislators)
> > favors software patents.
> 
> I am sorry, but "technical character" is the key criteria in swedish
> patent law tradition (and I guess in other german traditions as well).
> 
> The discussion dates well back to 1963 where the "invention concept" and
> "technical character" was discussed in depth in the preambles of the
> law. It is still present all over the place, e.g. in EPO papers :
> 
>    "While "programs for computers" are included among the items listed
>    in Art. 52(2), if the claimed subject-matter has a technical
>    character it is not excluded from patentability by the provisions of
>    Art. 52(2) and (3)."
>    http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm
> 
> Inventions have technical character in Europe, but as far as I
> understand, there was never an U.S debate on "technicity" etc.
> 
> > How judges interpret "technical character" can be important.
> 
> It is the most important criterium. It is fundamental.
> 
> > But I don't think a campaign on our part against that term would
> > deliver much effect on judges.  The people who listen to us mostly do
> >  not have much contact with judges.
> 
> I thougt this discussion was about sloppy use of the term "information
> technology". Are you seriously advocating a campaign against the term
> "technical character"?
> 
> > If we want to influence how judges interpret "technical character", I
> >  think the best way is to put these arguments into articles and
> > publish them in places that judges might read.  For instance, law
> > reviews. That may not be easy, but if done, it might do some good.
> 
> The whole discussion about "controllable forces of nature" and "applied
> natural science", I'd say the whole directive, is about how to define
> the borders of what is patentable subject-matter, the "invention
> concept" etc.
> 
> //Erik

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