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Kober 2001/06Schar 1998Laat 2000Schiuma 2000

Mark Schar 1998: What is Technical?
Commemorate Banana Union Day

An EPO judge proposes a consistent definition of the term "technical character" that has sinc 1986 been changed by the EPO's Technical Board of Appeal in an unsystematic manner, case by case. Schar proposes that that any practical and repeatable solution should be considered to be a technical and therefore patentable. This is well in line with current EPO practise, and it means that all computer programs as well as all programmed or otherwise practically applied mathematical methods, business methods, games and data structures are patentable. Only the problem solving event in the human mind is non-patentable according to this doctrine. As soon as the solution is objectivated, i.e. transformed into its practically applicable and repeatable form, it is no longer the solution as such and therefore patentable. Schar explicitely rejects previous doctrines such as those of the German Federal Court (and the EPO examination guidelines of 1978) which distinguished between the invention and its embodiment (objectivation) and demanded that not only the emodiment but also the invention be technical, i.e. contain natural forces as a constitutive element. The chief reason he gives for this rejection is that certain books from 1900 contain some outdated or politically incorrect wording and that currently monism seems to be more fashionable than mind-matter dualism. This reasoning may be more than sufficient to convince the readers of the Journal of World Intellectual Property.
title:
Mark Schar 1998: What is Technical?
source:
JWIP JWIP 1998
where:
The Journal of World Intellectual Property 1998
title:
What is "Technical"?
A Contribution to the Concept of "Technicality" in the Light of the European Patent Convention
author:
Mark Schar[1]
The author, a former judge of those courts of the European Patent Office that significantly enlarged the scope of patentability by means of court decisions, discusses doctrines about the limits of patentability that were developped mainly in german-language juridical literature. He explains:
The European Patent Convention (EPC) uses the term "technique" and "technical" in all its three languages, English, French and German. If the impression could arise in the following study that citations of literature from the German speaking area of law are more frequent than others, it is not necessarily due to any bias but to the fact that the German, Austrian and Swiss theory and practise have struggled comparatively intensively with that subject. There is also another reason for this. It consists in the fact that older patent laws approach the meaning of the term "technique" by the terms "industrial application", "manufacture" or "manner of manufacture". We shall come back to that below ...
"Technicality" (german Technizität, latin technicitas) is not related to "technicalities" (= implementational details). A less confusing term would be "technicalness", or, conforming to anglo-latin word-derivation rules, "technicity". "Technique" stands here for german "Technik", and to my knowledge it is not used in the English version of the EPC. "Technik" can refer to "violin technique" (Violintechnik) and other "non-technical" techniques, but when standing alone, it is understood to mean "applied natural science" or "engineering", seen in words such as "Technische Hochschule" (engineering college), "technische Berufe" (engineering professions). In German, this is understood as not referring to the "technicalities" of mathematics or business administration but only to applied natural science. In the words of the Federal Court (BGH), patents hat to contain a "technical teaching", valuable to the specialist of applied natural science, providing him with new insights on how to "use natural forces to directly achieve a causally overseeable useful effect". This doctrine was written into the examination guidelines of the EPO and the German patent office in the 1980s. However the EPO has since then successively dismantled this doctrine by a series of decisions of the Technical Board of Appeal (TBA). The author Mark Schar was a member of the TBA during this time. The TBA's decisions aroused heated discussions, and although most patent lawyers agreed with the direction taken by the TBA, many have pointed out a lack of consistency in those decisions. In this article, Schar endeavors to systematize the decisions taken by the TBA into a new rationale for delimiting what should be patentable. His carefully crafted doctrine seems to achieve this aim quite successfully. It was reviewed by colleagues still on the TBA, and it is perfectly in line with the EPO's draft of a Basic Proposal for the Revision of the European Patent Convention of July 2000, which proposed to remove the entire list of patentability exclusions from Art 52 of the EPC. Although the doctrine may be consistent in itself, it conflicts with external values such as freedom of written expression and economic policy goals such as innovation and competition. These goals seem better served by the old "natural forces" doctrine, which seems at least equally consistent in itself and, in contrast to the new EPO doctrine, perfectly in line with the written law. Therefore Mark Schar needs to find a way to refute the old natural-forces doctrine. While direct refutation may be difficult, for the purpose of convincing a congregation of believers, less powerful argumentative devices might suffice. Let's see how Mark Schar tackles the job:
Recently there appeared several articles which dealt with the mentioned subject.[2]

The main questions arising from these articles can be summarized as follows:

The following examination will try to deal with these questions.

...

II The Term "technique" as a restriction of patentable matter

European patents are only granted for "technical inventions". This limitation is necessary, because the term "invention" is so general that, for example, purely mental events can fall under it.

The EPC does not mention the term "technical inventions". Moreover "invention" is not general but refers only to technical innovations not including those listed in the list of exclusions under Art 52.2.
The limitation is therefore required for practical legal reasons. Technical inventions are today clearly ascertainable, others are not. There have been repeated endeavours in the past to legislate with regard to the latter, for example referring to purely scientific findings, but without success.[3]

...

Article 52(2) of the European Patent Convention does not say that the exclusion of

were there because that matter was non-technical. Rather it states that European patents are granted for inventions which are .

It goes on that the nine matters listed above are "not considered" an invention "as such". It is the practise which held that the exclusion is based on lack of technical character -- a conclusion drawn from the above-mentioned understanding of the term "invention".

In the doctrine one can find the therm "technical" as also referring to the exceptions from patentability according to Article 52(b) of the EPC and related to "plant or animal varieties or essentially biological processes ... where the term 'biological' is considered in its relation to the term 'technical'"[4]

The author then procedes to give some examples of insufficient and fluctuating definitions of technical character so as to prepare the ground for justifying his later proposed extension of the patent system to all repeatable practical solutions.
In patent law it was held for a long time that a technical activity involved the solution of a problem by the use of the "forces of nature". Two aspects are essential in this, namely the solution of a problem, and the use of the forces of nature.
The "solution of a problem" belongs to present-day EPO doctrine. It was hardly ever explicitely mentioned in earlier writings. Instead the "use of natural forces to directly achieve a causally overseeable effect" has been the dominant concept until changes were introduced by the EPO's Technical Board of Appeal, in which the author participated. The author fails to properly explain this earlier doctrine and to cite the relevant literature that explains it adequately. Instead he attacks some older writings that are less authoritative and less well argued.
The term "force of nature" can be found in a definition of the term "invention" in Otto von Gierke's "Deutsches Privatrecht", published in 1895, and in the book, published in 1900, by J. Kohler.[5]

It corresponded to the language used at that time as one "wrestled" with the term "invention".

The term "natural forces" (Naturkräfte) corresponds to the language of old and new epistemology, e.g. Descartes, Kant, Popper and others, who see the mind-matter borderline (or matter-mind-information in Popper's 3-worlds approach) as an unsurmountable basic category. As Kolle notes, the distinction between the physical and the logical sphere is generally used outside of the patent system. And it continues to be used, even after the EPO's board of appeal began to find the concept inconvenient for its purposes. Schar now goes to great lenghts to suggest that the mind-matter-borderline has been subject to some shifts of meaning and old-fashioned terminology debates in the past, which is why "modern" patent lawyers such as those at the EPO are perfectly entitled to discard it today:
In patent-law literature, the term "force of nature" served in the beginning to distinguish between living and inanimate nature. In another place, with regard to the term "technique" it is stated:

Initially limited to the inanimate nature, it concerned step by step also the living nature ...

In the same context it is also added that the terms "force of nature" and "matter of nature" (Naturstoffe) shall be conceived as broadly as possible and further that the term was first reserved for "mechanical" technique and that afterwards it began to include also inanimate nature. It remained doubtful, however, to what extent the domain of living nature would be covered under it. The human body was not considered to be covered, but it seemed to apply to the animal body whereit was referred to jurisprudence on bacteria and yeast fungi, and then, in principle, also to plants. Furthermore it was asserted that biological forces were also forces of nature, but that human mental activity was not. (Schulte, 1994, N26, 2.22(sa) on §1; similar also to Benkard, 1993, N 45 on §1)

A better translation would be "natural forces" or "physical forces" for "Naturkräfte" and "natural substances" or "physical substances" for "Naturstoffe". But Schar needs to dress his opponent's viewpoint in old-fashioned language, so as to make up for his own lack of relevant arguments. In a next step, he procedes to let Kohler appear politically incorrect:
Therefore it has already become clear that a qualification on the basis of the distinction between "inanimate" and "living" nature ("belebte" und "unbelebte natur") has become outdated. According to today's understanding, man himself belongs to nature. The answer has, therefore, to be found elsewhere.
The fact that man has his corporal base in biology and chemistry has been known for many centuries if not millenia, and it changes nothing about the the categorial difference between the logical and the physical world. All this is well explained in the relevant jurisdiction summarised in the Kolle article of 1977.
The striking change in the understanding of "force of nature" is highlighted by the fact that Kohler could call the technical invention "Naturkrafterfindung" ("force of nature invention") and say in his introduction to the nature of the invention:

To conquer the world of forces, to rummage around in the highest and in the deepest, to extend our sovereignty across the earth and the world, that is our task.

Although it is just this which is happening, it is also a fact that our consciousness has changed in the above-mentioned sense. It does not distinguish between man as the sovereign of nature and nature as a dominion anymore, but espouses an integrated view and the requirement of responsibility.

Certainly Kohler's quotation about "sovereignty across the earth and the world" no longer fits our currently dominant intellectual mood (Zeitgeist). Yet modern science and technology is pursuing "sovereignty across the earth" as clearly as ever, and Kohler didn't say that this sovereignty should not be managed in a responsible manner. Responsibility for the planet earth requires not only synthesis but also analysis. An "integrated view" cannot be achieved by blurring borders.
By the words "force of nature" one thinks, today, mainly of the four fundamental forces of nature -- gravity; electromagnetism; the strong nuclear force; and the weak nuclear force. It seems that these terms can be used to describe all ascertainable events in our universe. Therefore, no criterion for the distinction between technical and non-technical matter can be based on that.
Can the theorem of Pythagoras or the number pi be described in terms of "gravity, electromagnetism, strong/weak nuclear force"? If not, then there is a vast area of human ingenuity outside of empirical knowledge about natural forces. It is precisely this area that theoreticians like Kohler and Kolle intended to keep outside of the patent system and that Schar wants to "integrate" into it.
In the practise of the Boards of Appeal of the European Patent Office (EPO) one finds "force of nature" being used, for example, with regard to a process to measure the flow of small quantities of fluid[6], electromagnetic forces[7], a constant magnetic field and a high frequency magnetic field[8]. The last example shows that the practise did not have an easy time with that term and could not dowithout a broad concept of it which then leads to the above considerations.
To summarise: Schar's basic "arguments" against the mind-matter borderline in the doctrine of patentability are: These arguments don't appear strong enough even to Schar, so he quotes some more people to create the impression that there is a broad consensus against mind-matter dualism:
B. Turning away from the term "force of nature" -- an objective concept of the term "technique"

In literature the term "force of nature" has always been criticized, already by Pietzker in his commentary in 1929 and by a good many others who refer to him.[9]

It has been said that Kohler had used the term in order to distinguish "patents of inventions" from "utility models", an antinomy which was not considered to be sufficiently clearly addressed.[10] Both considerations and conclusions have to be approved today.

An patentable invention should contain a teaching that contributes to the proress of natural science while a "utility model" need not meet this requirement. If Kohler's presentation of this difference lacked clarity and was criticized by someone in 1929, that does not mean that the BGH concept of 1976 and later was not clear or could not be further elaborated today.
...

It may also be added, that Kohler seems to have based his term "force of nature" on the notion "physical effect" from Anglo-Saxon literature(footnote: Kohler, 1900, p. 106, ar "Robinson §166") which would not necessarily have to be associated with "force of nature".

It leads rather, as shall be seen in the following, to the still valid criterion of "practical applicability".

For quite some time, in jurisprudence, there has been a turning away from the term "force of nature". Instead one speaks of "phenomena of nature", whereby not only forces but also "matter, effects and forces and energy" are understood.(footnote: The BGH Rote Taube case, GRUR, 1969, p.672, II/A/para.2) Indeed it turned out early on that one could do without the term "force of nature", following a Decision of the BGH in 1966 wherein it was held that already in 1889 it had been established that patent law was not directed to theory but to "applicable discovery" (anwendbare Erkenntnis) hich was approved by large parts of the literature and jurisprudence.

The anglosaxon term "physical effect" is in fact even easier to twist into meaninglessness than is the concept of "use of natural forces to directly achieve a causally overseeable effect" developped by the BGH in the Rote Taube and other cases up to the 1980s. This may be one of the reasons why lawcourts in anglosaxon countries were quicker in broadening the scope of patentability. Schar confuses discussions about terminology with discussions about the mind-matter-borderline. Maybe the terminology used by Kohler was adequate, maybe it wasn't. The concept was there, and it was sharpened by the BGH decisions of 1966 and 1969. Thus, even if some people "turned away" from some of Kohler's terminology, they did not turn away from the duality of mind vs matter. And in fact they continued to use the term "natural forces" in doing that. Even when some court decisions talk about "applicable theory", they imply that it is a theory in the realm of the science of natural forces. This is in line with demanding that an invention contribute to the progress of natural science.
One can now reach a safe ground (as shall be made clear in the following), namely, at the direct reference to the term "science". It is between theory and practise --- i.e. thought in the sense of knowledge, on the one hand, and the application of that thought, on the other --- where the necessary distinction lies. It is not the distinction between living and inanimate which matters primarily in this context -- and the activity of the human mind is clearly excluded. The definition to which the term "force of nature" has been reduced today, is thus easily achievable.
Without having explained why the mind-matter borderline is "unsafe ground", Schar proposes a daring formula that would make all applied mathematics and other applications of pure reasoning patentable. The "distinction between living and inanimate" was never an issue in recent debates. Unfortunately, the "activity of the human mind" is clearly included within the realm of patentability under Schar's formula. A comparison to the Soviet regime may help. The "freedom of thought" was guaranteed, as long as you kept that thought to yourself. Under EPO rules, you may use a mathematical theorem in your head, but any real-world expression of that theorem, even the simple use of the computer as the normal means of expressing mathemtical thought, can be dangerous.
IV technique and science

A. general

Science refers to knowledge, technique to its application. Science belongs to the world of thoughts, technique to the world of action. In short, science is thinking, technique is acting. Science has to be conceived in a broad sense covering both a fundamental concept as well as a clever idea. Only knowledge which has an application can become technical.

...

As is generally known, it may be assumed that science refers to knowledge which is verifiable, inspectable, reviewable by comprehension, repetition, reproduction, in which context it is most often referred, also to the method of experiment. ...

True. This implies that we are dealing with applied natural science, i.e. a science about the causalities of natural forces. Mathematical theorems are not susceptible to experimental verification but only to logical proof. An "invention" or "technical invention" can therefore be meaningfully defined as a "a problem solution comprising a contribution to the progress of natural science".
As the application of knowledge, "technique" means practical action, "practical" ust be understood in its primary sense, i.e. concrete action. The notions of "science" and "technique" are related in so far as both require certainty in the sense of comprehension, repetition and reproduction.
Here Schar has again forgotten the requirement of experimental verifiability.
Science means, therefore, comprehensible theory; technique is comprehensible practise, wherefore "practise" always includes a portion of independent thinking or spirit.
Yes, and, in case of an invention, this independent thinking should provide a new insight into cause-effect relations of natural forces.
This comparison supplies, on the spot, two criteria for considering the term "technique":

(i) a reference to practical action
(ii) a criterion of certainty, repeatability.

This means that any practical application of pure thought (i.e. applying the theorem of Pythagoras to architecture) is in principle patentable.)
Negatively put, they mean:

If "pure thought" is not technical, then the "technical" sphere is again limited to the realm of applied natural science, and the "natural forces" theory sneaks back in. If, on the other hand, the non-inventive objectivaton of "pure thought" by means of well-known embodiments such as the operation of a computer is to be patentable, then pure thought becomes patentable. Not only is a basic priniciple of patent law that the claim should reflect the invention, in this case pure thought. Also, even if we deviate from this principle and don't allow a claim to a thought process but only to its non-inventive objectivisation as a computer process, we have thereby in fact claimed the thought process, because the universal computer is the standard logical device of modern man.
...

v. preliminary result

On the basis of what has been said above, one can establish the concept of the term "technique" by the four objective criteria an objective understanding of the term "technique" requires

(i) a solution
(ii) of a problem
(iii) in a practical and
(iv) repeatable manner,

or in short: a practical an repeatable solution.

this opens the field of patentability to computer programs, business operations, musical composition techniques, social techniques and in general to anything that EPO customers might like to monopolise. We still prefer "a solution that comprises a contribution to the progress of natural science." Schar forgets that the purpose of formulating patentability rules is not just to remove perceived inconsistencies from selected works of legal literature, but to provide a beneficial system for society.
...

b. comparison with other concepts of technicality

...

In the decision of the German Bundesgerichtshof (BGH) Dispositionsprogramm[11] there can be found the following definiton, which has been taken over by large parts of theory and practise:

Technical is: (i) a teaching
(ii) for an action according to plan
(iii) by using controllable forces of nature
(iv) for the causally surveyable achievement of a result
(v) which is without intermediary activity of the human mind
(vi) the direct consequence of the use of controllable forces of nature[12]

The objective technicality concept discussed above corresponds to this definition, except points (iii) and (vi) regarding the use of natural forces, which can, as shown above in Section iii.B, be left aside today.

we have cited and discussed the complete section iii.B here, and we didn't find a single argument, let alone a valid one, for not requiring that an invention should provide new insights into a physical causality between means and effect. Interestingly enough, Schar also fails at this point so summarise any arguments. He can apparently build on a consensus of his readers, who evidently are adherents of the patent movement. Patent lawyers have largely agreed that they want to discard this important definition, which provides the only way to stay in line with art 52 EPC and, as Kolle pointed out in his analysis of the Dispositionsprogramm decision in 1977, the only way to delimit patentability and define technicity in a consistent and meaningful manner. They have discarded the concept of technicity, but, for PR reasons, they still need to pretend that there is some continuity.
...

IX consideration of the objective technicality concept in the light of actually relevant matter

A. application of the objective technicality concept on computer software or solutions referring to computer programs

In article 52(2)(c) and (3) of the EPC it is stated that "programs for computers" are not recognized "as such" as inventions in the sense of Article 51(1) of the EPC. What does this mean?

...

In the elided sections, Schar restates the well-known EPO fallacies about "computer programs as such" vs "computer programs with a technical effect", which allow the EPO to decide about patentability based on its definition of "technical character", thus in effect rendering the list of exclusions in art 52.2 meaningless. Whether an item is on this list or not has no effect on the EPO's patenting practise. A consistent and meaningful interpretation of art 52(2) would not be difficult. Schar procedes to make clear what everybody can guess: his "objective technicality concept" leads to the patentability of anything man-made under the sun, including mathematical theorems, computer programs, business methods, the presentation of information and even data structures, provided that they can be put to some kind of concrete use. The latter is usually possible, thanks to the universal computer. Anything that runs on a universal computer is, according to Schar's systematisation of recent (unsystematic) EPO doctrine, patentable. This corresponds to the well-established facts.
3. Consequences from an Objective Technicality Concept

It follows that the four technicality criteria discussed here have been considered in the practise, if partly only implicitly. It may be assumed today to be generally known that a program for a computer can be understood as instructions/statements/algorithms, demonstrated as a sequenceof symbols/signs and usually digitally memorized. As such it can, on one hand, be "read" and analysed by a software expert, much like the text of a book, music notes ora chreography. On the other hand, it can (mainly on the basis of boolean algebra and thesurprising possibility to quickly execute and represent its logical operations and statements by modern electronic switches or transistors, in an electronic circuit), and there is probably the rub, also be "read", processed and run, on a machine/device mainly consisting of those switches, a computer, a computer chip, accordingto its programmatic sense. May objectively existing problems from all walks of life can be solved in this manner. One can think of the many controlling/steering problems, by which the four criteria are fulfilled: on one hand there is an objectively ascertainable problem and on the other there is a practical solution. A program is usually used for the solution of a problem, once it is used according to its purpose, that is, when it is in the ourside world which is the domain of practical action. Thus, the third criterion is also fulfilled. What about criterion number iv, repeatability? That is if it is said on which device it is intended to be run (e.g. on a so-called "universal" computer) and any additional conditions, and if it provides a solution to the problem, then there should not exist any doubts regarding repeatability.

The technicality concept discussed here corresponds to the EPO also in that context, by which it becomes clear form this alone that a computer program which is not destined to be used for the objectively ascertainable solution of a certain problem, cannot fulfil that concept. Programs "as such", according to article 52(2)(c) and (3) of the EPC have, therefore, to be understood as programs which are not used according to their primary destination, whichis the practical application on a computer. There can be found several Decisions by the Boards of Appeal of the EPO which, if only in part implicitely, refer to the criterion of practical application by asking for the result achieved.

...

All kinds of programs have to fulfil those criteria for patentability, whether they refer to operating systems, application programs, programs regarding neuronal nets or regarding "artificial intelligence", etc. The EPC does not, apart from the mentioned exclusions and exceptions, provide rules according to which the technicality criteria ca be applied differently on those subjects.

4. Computer Programs and Mathematical Methods

...

A certain method of division is not patentable. These and their application by the mathematician, represent no practical application in the outside world because it essentially happens in the mathematicia's head, by which the third techniciality criterion is not fulfilled. A calculating machine, however, which applies that method -- the term "method" corresponding to the term "process" --- is considered patentable.

...

Now, if such a machine with axes, gearwheels and curves -- that is with steering means -- represents an application in the outside world, then also a calculating machine with modern steering means such as, for example, a universal computer and a specific program for it, must also be considered to be an application in the outside world, which can claim patentability in the same sense. In that case, both of the mentioned restrictions do not apply, i.e. the solution neither lies in the mathematical method as such nor in a computer program as such. This means that the matter falls under none of the exclusions mentioned.

...

5. Computer Programs and Games

...

Also the exclusion regarding programs for computers would not apply ... because that program would serve for a practical and repeatable solution (in the outside world) to solve the problem mentioned, wherefore there would not be the question of the protection of a program "as such" either.

...

C. application of the objective technicality concepton computer memory organisations

...

In the United States a matter was considered patentable which was defined according to its claim in essential parts as %(q:a memory for storing data for access by an application program, comprising: a plurality of attribute data objects;) and referring to several specific relationships between data objects.

...

If such a structure of fields is objectively ascertainable, there will be a practical action and an observable, i.e. measurable, event in the outside world, which is, as here, often, but not necessarily, dealt with as %(q:physical). Because the techniciality criterion (iii) is present and it is assumed that criteria (i), (ii) and (iv) were also given, and the other criteria (novelty, inventive step, etc) fulfilled, there couldnot be much in the way of patentability.

...

XI conclusion

A. an objective technicality concept

The above discussion has shown that the four criteria mentioned preliminarily .. are necessary under an objective technicality concept. It showed also that European patent law appears to be directed to such a concept and that the practise of the EPO seems to be following it. If its criteria have not always been valued correspondingly, that may have its explanation in the development of the understanding of its elements as mentioned.

The criteria are concise, open and not hypothetical. Their application on matter of recent actuality have shown that this concept can handle that comparatively clearly and in an uncomplicated way.

b. the main criteria of the objective technicality concept

The objective concept of technicality, as shown in section v, requires mainly the four following criteria:

(i) solution
(ii) of a problem
(iii) in a practical and
(iv) repeatable manner.

Because a solution implies a problem, one can reduce this definition by mentioning only three criteria which are then absolutely indispensable:

- a practical and repeatable solution.

....

d. specification of other terms in patent law

The EPC protects technical inventions. It has become clear that this requires more than just a creative thought alone. It is the application of that thought, the logical human intellect transformed into practise, which is of importance and then its objectively comprehensible materialization, for example, in the form of patent claims referring to it and a supporting description. In patent law, as practised daily, it is this and not only its ideal pre-condition which is required.

This seems to mean that the great achievement rewarded by patent is not the invention of mathematical methods as such, which is not patentable, but only the ability to run an already invented unpatentable mathematical method on a universal computer and the ability to formulate it in terms of patent claims.
It would thus seem possible to specify the term "technical inventions" on the basis of today's legal situation:

An invention in the sense of the EPC is a technical solution which is industrially applicable, new and inventive according to article 52(1) of the EPC and which does not fall under one of its restrictive clauses.
The last subphrase seems redundant, because, according to Schar, the restrictive clauses themeselves are construed as referring to mental processes or metaphysical entities outside of the scope of "practical and repeatable problem solutions". Whenever a restriction seems to refer to something of practical relevance, the EPO simply decides that the patent is not being granted on the questionable object as such (which, in EPO jargon, has come to mean "a metaphysical entity related to that object"), but on a practical solution related to it. Usually this is all the EPO's customers will ever want. They are not coming to apply for ownership of metaphysical entities but for monopolies on practical solutions).
...

xii future prospects

It is the practise which hasto apply to the objective technicality concept. As somebody who has been a member of the European Patent Office until not long ago, the author would like to exercise restraint with regard to suggestions. Some postulates appearing in the literature have been mentioned.

Notes

[1] Dr. Jur., avocat-conseil, Coppet, Switzerland; Member of the Swiss Arbitration Association; former member of the Boards of Appeal of the European Patent Office, Munich, Germany. This article is the English translation of the German text which appeared in the Mitteilungen der Deutschen Patentanwälte, Heft 9/10, S.322-339, 1998. If it appears slightly abbreviated, this is due to the fact that some comments which had a special bearing regarding the discussion in the German speaking legal area could be left aside here, although they would not have been redundant in this context. This is the update of an essay written in 1995, and newer literature, up until the summer of 1998, has also been considered. The author thanks his former colleagues and collaborators of the Boards of Appeal for interesting discussions on the subject and help with the translation of legal texts.

The translations of German terms used in the article have been made by the author unless otherwise indicated.
[2] Godenhielm, 1996, p. 327; Van Raden, 1995, p. 451 Stamm, 1995, p. 121 and 199, p.6; van den Berg, 1996, pp. 29 et seq; and Jander, 1996, p.1
[3] See Troller, 1983, p.61, ad. 18. On more recent legal and political considerations on that subject see Van Raden and Werthenson, 1995, p.523
[4] Moufang, 1991, N110 on Article 52 of the EPC
[5] Kohler, 1900, p.83
[6] T 245/86, O.J. EPO 1989, p.171, point 3.2
[7] T 26/86, O.J. EPO 1988, p.19, point 3.2
[8] T 385/86, O.J. EPO 1988, p. 308, point 3.5.1
[9] Blum and Pedrazzini, 1975, p.77, ad.8 on Article 1; and further references in Gaul and Bartenbach
[10] Pietzcker, 1929, N2, p.21.
[11] GRUR 1977, p. 96, referring to the exclusion of the activity of the human mind, which was confirmed in the Decision of the BGH "Kennungsscheibe", GRUR, 1977, p.152,referring to the direct relationship between problem and solution without intermediary action of the human mind, further confirmed in the BGH decision "Antiblockiersystem", GRUR, 1980, p.849, all of them based on the BGH Decision in "Rote Taube", GRUR< 1969, p.672, regarding an animal breeding process
[12] Technisch ist eine Lehre zum planmäßigen Handeln unter Einsatz beherrschbarer Naturkräfte zur Erreichung eines kausal übersehbaren Erfolges, der, ohne Zwischenschaltung menschlicher Verstandestätigkeit, die unmittelbare Folge des Einsatzes beherrschbarer Naturkräfte ist.

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