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altera facta hic scripta sunt.
Basic laws of human civilisation often take the form of the Ten Commandments: Thou shalt not ... Further examples are: the rules of Buddhists, the human rights catalogue in constitutions of modern states and ... the list of exclusions from patentability in Article 52(2) of the European Patent Convention. In all these cases, the list of exclusions is incomplete. In order to abide by the rules, it is not sufficient to literally observe the exclusions. Literal interpretation may lead to contradictions or phariseism. In order to really guide practise onto a law-abiding path, a theory of righteousness is needed. In the case of patentability, this is the theory of "technical invention". Such a theory is not made for eternity. However, while paradigms shift and old testaments are replaced with new testaments, the basic rules of exclusion should endure, and it is the job of the high-priests of the system to find an appropriate theory to support them. Let us see how the guardians of the European Patent System have done their job compared to those of the successors of Moses.
| The Ten Exclusions and the Technical Board of Appeal | The Ten Commandments and the Holy Council |
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| Mathematical methods, schemes and rules for performing mental acts or doing business, programs for computers, arrangements of information etc are not patentable. | Idolatry, Deception, Theft, Adultery, Murdering etc do not deserve blessing. |
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| invention = technical teaching = teaching for planned action using controllable forces of nature to achieve an causally overseeable effect which is without intervention of mental steps the immediate result of controllable natural forces (BGH 1980) | merit = ethical deed = voluntary planned action based on a spirit of reverence for life according to rules whose adoption by other people would serve the public interest (cf Kant and Schweitzer) |
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| patent | blessing |
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| Thou shalt not attempt to obstruct thy neighbor's work of creating, publishing and distributing his own copyrighted programs. | Thou shalt not desire thy neighbor's wife, house and what is his. |
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| Given that computer programs and mathematical methods are not patentable, someone could try to infer that technical inventions are not patentable because their implementation could involve a computer program. This kind of lazy formalistic interpretation of the patentability rules is not acceptable. The examiner must diregard the claim wording and carefully analyse where the allegedly novel and non-obvious teaching lies, whose patentability is under consideration. A patent may not be granted for a computation rule as such, but it may be granted for a technical invention (e.g. new chemical process) whose implementation may involve a computer program. By the same token, a computation rule does not become a technical invention by the fact that technical means can or must be used during its practical application. | Given that lying, stealing, killing and all sort of other actions are sinful, someone could argue that even in a situation of defending my neighbor against a gangster, I must not use lies to fool the gangster. This kind of lazy formalistic approach to ethics is evidently unethical. We must take care to look closely what act is really under consideration. A blessing may not granted for a lie as such, but it may be granted for an ethical action of defending one's neighbor, even when this action involved lying (e.g. fooling the aggressor) or some other activity which by itself could never be considered to be ethical. Inversely, a lie does not become an ethical deed by the fact that its practical application is possibly or necessarily connected to ethical deeds such as helping one's neighbor. |
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Disclaimer: This section is not meant to offend any religious faith. The theological doctrines developped therein are not those of the Roman Catholic Church or Societas Jesu nor of any Christian, Buddhist, Muslim or other confession.
| The Ten Exclusions and the Technical Board of Appeal | The Ten Commandments and the Holy Council |
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| I want a patent for this programming solution, because it is not a program as such. | I want a blessing for this appropriation of bank money, because it is not robbery as such. |
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| The patent is granted, because the program cannot be denied to have a further technical effect. | The blessing is given, because this robbery cannot be denied to have a further ethical effect. |
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| [Our investigation] may result in the identification of those programs for computers which, as a result of not being considered programs for computers as such, are open to patentability.[1] | Our investigation may result in the identification of those bank robberies which, as a result of not being considered bank robberies as such, may receive a blessing. |
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| With regard to what computer-implemented inventions can be said to have "technical character" the conclusion to be drawn from the recent Controlling pension benefits system20 case is that all programs when run in a computer are by definition technical (because a computer is a machine), and so are able pass this basic hurdle of being an "invention".[2] | With regard to what wealthtransfer-implemented righteous deeds can be said to have an "ethical character" the conclusion to be drawn from the Holy Council's recent Transferring Pension Benefits System case is that all bank robberies which serve to transfer wealth to the needy are by definition ethical (because transfer of wealth to the needy is an ethical cause), and so are able pass this basic hurdle of being a "righteous deed". |
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| In order for the program to be patentable, there needs to be a further technical effect, such as an improvement of efficiency of using the computer. | In order for the stealing to be blessable, there needs to be a further ethical effect, such as an improvement of the ability of the ethical person to perform ethical acts. |
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| But what is technical? The EPO's Technical Board of Appeal has created a clear definition: anything is technical that is a technical solution to a technical problem. | But what is ethical? The Holy Council's Ethical Board of Appeal has a clear definition: Anything is ethical that is an ethical way of pursuing an ethical cause. |
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| BGH-Beschluss 1999-12-13: Logikverifikation:
If the solution refers to an intermediate step in the process that ends with the production of silicon chips, then it cannot be denied patent protection simply because it desists from the immediate use of controllable forces of nature and instead seeks to advance the possibilities of manufacturing useful goods by knowledge that is based on technical considerations.
| In its most recent decision, the Episcopate of the Church of Germany loosens the time-honored immediacy principle:
If the deed refers to an intermediate step in a chain of action that ends with the enrichment of ethical persons, then it cannot be denied a blessing simply because it desists from using morally irreproachable means and instead chooses to to advance the ethical cause by other activities which are based on ethical considerations.
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| The practise of the EPO proves that under European Law computer programs are patentable. Only computer programs for computers "as such" are not patentable. | The practise of the Holy Council proves that under the Ten Commandments stealing is generally considered worthy of blessing. Only stealing "as such" is sinful. |
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In an influential law journal article, opinion leaders of the patent movement argue as follows:
Patent law experts have still not reached consensus in what a "program as such" is. Some [3] say it is the source code, others [4] say it is machine executable work, yet others [5] say it is the intellectual concept. In view of this confusion, patent experts are currently working on all channels to have the confusing "programs for computers as such" removed from the Law. In anticipation of the Legislator's decision, patent offices are already interpreting the Law so narrowly that virtually any program can receive patent protection, provided it is new and non-obvious.
| Theologians have not yet reached a consensus on how many angels can dance on a needle tip. The same holds for the definition of "stealing as such". Thomas Aquaeus interpreted it as the intention to act, Albertus Parvus as the perpetrated deed, Carolus Rahner as the abstract plan. It seems impossible to give a clear and useful definition. Therefore thousands of priests are currently praying to the Lord that he may remove this ill-guided "thou shalt not steal-as-such" Commandment from the Decalog. In anticipation of the Lord's legislative decision, sanctification councils are already interpreting the Decalog so narrowly that virtually any bank robbery can be granted a blessing, provided it was voluntarily undertaken and diligently executed. |
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| In a government-ordered expertise and other texts, PA Axel H. Horns argues approximately as follows:
The examining office has no way to tell, whether a claim under consideration is directed to a "program for computers as such". Many inventions are ambivalent: they can be implemented both as hardware or as software. Therefore any computer program can receive patent protection, as long as the applicant does not explicitely include a piece of program text in his claim. The whole question of whether an application refers to a "computer program as such" or not can only be attributed to an error of the legislator. To clarify matters, we should only speak about computer-implemented inventions or computer-implementable inventions.
| The Council has no way to judge whether a blessing request under consideration is directed to "stealing as such". Many merits are ambivalent: whether or not they involve an infringement of someone else's property is determined by the situational context. Therefore any theft can receive a blessing, as long as the applicant does not include an act of theft in his application (e.g. write with a pen stolen from the Council). The whole question of whether a merit refers to "stealing as such" or not can only be attributed to a lapsus on the part of the Lord or his servant Moses. To clarify matters, we should avoid their terminology and instead speak about property-relevant merits or potentially property-relevant merits. The Abbey has no way to judge whether a request under consideration is directed to "sexual practise as such". Many spiritual exercises are ambivalent: they can be carried out with or without sexual means. Therefore practically any sexual activity can receive an authorisation, as long as the applicants do no present their request by means of explicit pictorial material. The whole question of whether a spiritual exercise refers to a "sexual practise as such" or not can only be attributed to a misconception on the part of St. Ignatius. To clarify matters we should refer only to "body-performed spiritual exercises" or "body-performable spiritual exercises". |
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| EPO 2000/05/19: Examination of "business method" applications:
The only apparent reason for distinguishing "technical effect" from "further technical effect" in the IBM Computer Program Product decision was because of the confusing presence of "programs for computers" in the list of exclusions under Article 52 EPC. If, as is to be anticipated, this element is dropped by the Diplomatic Conference, there will no longer be any basis for such a distinction.
| Last year, the Monasterial Council explained why monks and nuns can now omit the cryptic justification formulas that were needed for exercitia sexualia in earlier years:
The only apparent reasoning for distinguishing "clerical effect" from "further clerical effect" ("ad maiorem Dei gloriam" vs "ad plus quam maiorem Dei gloriam") in the Societatis Jesu Exercitia Sexualia decision was because of the confusing presence of "sexual activity" in the list of prohibitions under Article 52 of the Monasterial Catechism. If, as is to be anticipated, this element is dropped by the next Episcopal Conference, there will no longer be any basis for such a distinction.
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| Today the EPO is financed by fees for the patents which it grants. | In Luther's times, the Church was financed by letters of redemption. |
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| While many people own intellectual property in the form of copyrighted programs which they created, they may be expropriated any time by means of a patent on a program functionality, provided that this functionality has, in addition to the technical effect of running on a computer, a further technical effect, such as making a computer do a better job. | When the EPO, in collusion with its large corporate customers, nullifies the copyright property of thousands of programmers and small companies, this theft can receive a legislative blessing from the European Commission, if in addition to stimulating the growth of patent portfolios it has a further property-promoting effect, such as creating new markets for patent experts. |
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 Rome and Juliet and the New Age of IPR- "Should great software achievements such as Office or Photoshop really be denied access to patenting?", a well-known evangelist of the "New Age of Property Rights" asked at a hearing in Berlin in May 2000. "A patent on "Romeo and Juliet" wouldn't be a trivial patent. As long as trivial patents can be avoided, I don't have much to say against patents", an observer said. Let's think these two statements to the end. After that, you will understand well what "software patents" are and at what crossroads our civilisation is standing.
- EPO 2000/05/19: Examination of "business method" applications
- The EPO document which introduced the term "computer-implemented invention". This is Appendix 6 of a report in which the EPO explains to the US and Japanese Patent Office to what extent it has made progress in working around the European Patent Convention so as to make business methods patentable in Europe. This document became the basis of the European Commission's software patentability directive proposal of 2002/02/20.
- EPO 1978: Examination Guidelines
- Adopted by the President of the European Patent Office in accordance with EPC 10.2a with effect from 1978-06-01. Excerpts concerning the question of technical invention, limits of patentability, computer programs, industrial application etc.
- Art 52 EPC: Interpretation and Revision
- The limits of what is patentable which were laid down in the European Patent Convention of 1973 have been eroded over the years. Influential patent courts have interpreted Art 52 in a way that renders it obscure and meaningless. Not all courts have followed this interpretation, and numerous law scholars have shown why it is not permissible. The EPO had accepted the inconsistencies in anticipation of an expected change of law. However this expectation was frustrated in 2000 by the governments and in 2003 by the European Parliament. The Parliament voted for a clarification which gives Art 52 back its meaning. Meanwhile, proponents from all sides have proposed to modify Art 52(3) EPC in one or the other way, of course while claiming that this merely serves to "clarify the status quo" or to implement a directive which serves this purpose, and, since the European Commission and the Council have not signalled support for the Parliament's approach, there is still no common understanding of which "status quo" we are talking about.
- Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention
- So far computer programs and other rules of organisation and calculation are not patentable inventions according to European law. This doesn't mean that a patentable manufacturing process may not be controlled by software. However the European Patent Office and some national courts have gradually blurred the formerly sharp boundary between material and immaterial innovation, thus risking to break the whole system and plunge it into a quagmire of arbitrariness, legal insecurity and dysfunctionality. This article offers an introduction and an overview of relevant research literature.
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