Re: libdts patent issue?
Michael Edwards wrote:
> Dualism is on the retreat,
> processes and machines are on an equal footing, and what makes
> something not an abstract idea "as such" is that it be "susceptible of
> industrial application" to reliably achieve a particular useful
> result.
In practice, that's another distinction without a difference. *sigh*
If "industrial" was any sort of limitation at all, it might mean something.
As it is -- with "solving a system of linear equations" being an "industrial
application" -- this means that EVERY piece of mathematics is "susceptible of
industrial application". Without exception.
Anyway, this interpretation, although it is apparently the interpretation
taken by the Board of Appeals, is again contrary to standard rules of
statutory interpretation, and therefore presumably wrong. The requirement
that something be "susceptible of industrial application" to be patentable is
given explicitly in a different clause of the EPC. If "not a mathematical
method as such" is read to mean merely "susceptible of industrial
application", then it is redundant surplusage and means nothing.
Accordingly, it should be assumed to mean something stronger. Ahem.
>the subject matter test is there to distinguish the
>theoretical from the applied
Nice idea, except that it's being used that way. *Everything* is applied
under the current standards and *nothing* is theoretical.
The first problem is that all theoretical mathematics is *applicable*,
although not *applied* until it is actually applied to a specific problem.
"Software patents" are not limited to a particular inventive application
(say, playing mp3 files), but apply to future applications using the same
mathematical method (say, converting mp3 files to ogg vorbis files). They
are patenting the applicable, not the applied.
The second (smaller) problem is that applications to mathematics are
apparently considered "applied" (viz. "a method to solve a system of linear
equations"), which really puts everything in the applied category without
exceptions.
I don't dispute that European judges are reading the EPC to allow all kinds of
crap. I say that it does not allow that kind of crap, and I have the better
legal arguments. It is sad that so many judges are incompetent, but there
you are.
> not to exclude applied science whose
> underlying natural law is that of computational complexity and theory
> of approximation instead of chemistry or physics.
This so-called "applied science" is a field of mathematics. Ahem.
Computational complexity theory is *not* a description of the natural world
-- you can't test its predictions or do physcial experiments to see how
accurate it is -- it's a description of mathematics.
> Do you really think it's fair to characterize as "pro-patenters"
> people who are simply pointing out:
> the actual state of the law as embodied in decisions by the
> relevant administrative and judicial authorities;
Well, that's fine. I never denied that. Some of these decisions are contrary
to statute, of course. Arguing that they are supported by statute is a
pro-patent argument.
> the difficulty courts had in applying a "physical effect" test
> consistently when it was believed to be the prescribed procedure;
Pointing out the incompetence of courts is all well and good, but saying that
it means they should give up is not.
> and the absence of a public policy rationale for denying the same
> sort of encouragement to applied researchers (and their financial
> backers) in fields where the work is done at a computer keyboard as in
> those where it is done at a lab bench?
Nobody has "pointed this out", and you've misframed the debate with several
false assumptions in this paragraph.
* Standard economic theory considers monopolies bad as a public policy matter
except when they are (a) natural monopolies, which patents never are, or (b)
they can be proven to have benefits outweighing their costs. Amazingly,
nobody has ever collected any evidence that any patents have benefits
outweighing their costs (except in the pharmaceutical industry, where there
are some inconclusive results which might tilt that way). The evidence that
"software patents" inhibit innovation, drive up costs, and generally waste
economic resources is quite complete. Therefore there is a strong public
policy rationale for denying them. The burden of proof is on *you* to show
that the incentive of patents is *necessary*, not on us to show that it is
unnecessary.
* Your argument imagines people "working at keyboards" who are "applied
researchers" much like those working at "lab benches". But what are they
actually doing? Software "engineering" is not engineering, as anyone who
compares the two carefully will realize. Research in the fundamentals of
engineering is research in the natural sciences, but practical engineering
requires a lot of additional skills too. "Research" in software *is* pure
mathematics, and the additional skills in practical programming are avoiding
bugs and writing clearly.
* This paragraph applies *just as well* for promoting the patentability of
artwork! If that's not pro-patent, what is? Read the following:
"and the absence of a public policy rationale for denying the same
sort of encouragement to applied researchers (and their financial
backers) in fields where the work is done at an easel as in
those where it is done at a lab bench?"
These are, of course, applied researchers in aesthetic theory. Their works,
when combined with a method of displaying them to people, have well-defined
mental effects on those people, which can be quite useful. Clearly a
patentable invention, now that no subject area is excluded, and "industrial
application" means "anything useful".
If I had money to burn, I would go ahead and start patenting artwork,
theorems, everything, because under the current low standards, as long as you
use enough fancy language, you can patent *anything*, as long as someone else
hasn't created it already. (Well, or even if they *have*, but the failure of
patent offices to look at prior are is a different problem.)
(Now, coming from a family of mathematicians, patentable mathematics is
actually probably going to be quite good for me financially! However,
mathematical inventions weren't considered patentable for at least a hundred
years, and people should understand that making them patentable is a serious
break with precedent.)
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