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2. A computer-readable medium is a technical product and, thus, has technical character (point 5.3 of the reasons).

HAHAHA ! It would be funny if it wasn't so sad...
What does "computer-readable medium" mean ?
Have these people never heard of OCR (Optical Character recognition[*]) ?
I guess any text written on a sheet of paper should qualify...

Please tell me this is a joke and that someone just couldn't wait for the next April Fool's day...



[*]http://en.wikipedia.org/wiki/Optical_character_recognition
 
 

 

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I think that at least a few members of the Boards of Appeal are old enough to still remember the times when computer input was done via punchcards, so I don't think that the idea that a sheet of paper can be a "computer-readable medium" will be news to them.
In any case, yes, a sheet of paper should qualify, as long as it contains on it a set of instructions enabling a computer to execute a novel, inventive and technical process...
 
 

 

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Rodrigo Calvo, you are either miss-informed (have you read the whole text) or lying. Either way you are spreading false information by implying that the EPO board of appeal is talking about the "technicality" of the process and not that of the computer-readable support of the computer program (aka software).

Method claims 2 to 4 depend on claim 1. Claim 5 is directed to a computer-readable medium having computer-executable instructions adapted to cause the computer
system to perform the method of one of claims 1 to 4.
is clearly written on page 5 of the paper.
The instruction medium claim 5 is based on the preceding method claims and the fact that the disclosed method for a computer system must be run by computer-executable instructions stored on a computer-readable medium (Figure 1, memory 20). on page 9

The subject-matter of claim 5 has technical character since it relates to a computer-readable medium, i.e. a technical product involving a carrier (see decision T 258/03 - Auction method/Hitachi cited above). [...]. The computer program recorded on the medium is therefore not considered to be a computer program as such, and thus also contributes to the technical character of the claimed subject-matter. on page 14

This whole "technical" nonsense has to stop.
The EPO Board of Appeal is clearly stating in the above document that a computer program is not a computer program "as such" but a "technical invention" because it is "recorded on the [computer-readable]medium" !
It is nonsense and you know it, so let us not pretend otherwise.
 
 

 

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Dear Frightened,

before hyperventilating, or suggesting I'm a liar, I'd suggest you had a look at the decision yourself, and particularly at point 5.3:

The subject-matter of
claim 5 has technical character since it relates to a
computer-readable medium, i.e. a technical product
involving a carrier (see decision T 258/03 - Auction
method/Hitachi cited above). Moreover, the computer-executable
instructions have the potential of achieving
the above-mentioned further technical effect of
enhancing the internal operation of the computer, which
goes beyond the elementary interaction of any hardware
and software of data processing (see T 1173/97 -
Computer program product/IBM; OJ EPO 1999, 609).
 
 

 

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Well, the fact that there are three "jokes " in this paper does not invalidate at all my previous post. You were indeed implying that the technicality was about the process when you wrote technical process while my citations of the text prove that the technicality relates to the computer readable medium, which is stupid as I said in my first post, because anything, even hand written paper, can be considered a computer-readable medium !

However, you are right that the computer-readable silliness is not the only reason for the technical character of said "invention". As a computer scientist (I hold an MEng, and PhD in computer science and taught the inner workings of computers from digital electonic to high level programming languages and software engineering), let me tell you something :
the key part of your citation
[...] goes beyond the elementary interaction of any hardware and software of data processing
is a complete nonsense.
Except for some low-level IO-programming, the only interactions are :
1) reading some bits into memory
2) setting some bits to 0 ou 1 into said memory.
There is only a small set of machine language instructions for each processor, you know.
If any software deserved to be considered technical in the sens of unusal interactions with hardware, I can only think of 2 in my life of computer scientist :
1) software that would change the spinning of the disk drive of tha Amiga computer in order to create strange sounds (don't do this at home, it was damaging the hardware)
2) computer virus that would destroy your monitor by switching the frequency at a fast pace.

Otherwise, there is nothing beyond the elementary interaction of any hardware and software of data processing

The joke is even more clear with the following citations from the text :

"Claim 1 relates to a method implemented in a computer system. T 258/03 - Auction method/Hitachi (OJ EPO 2004, 575) states that a method using technical means is an
invention within the meaning of Article 52(1) EPC. A computer system including a memory (clipboard) is a technical means, and consequently the claimed method has technical character in accordance with established case law." on page 14

And then :
"The claimed method modifies the internal operation of a computer system and is therefore technical." page 6.

So we can conclude that according to the EPO Borad of Appeal, the software is a "technical invention" IF :
1) it is written on a computer-readable medium (pages 4,9,14)
2) is run on "a computer system including a memory" (page 14)
3) "modifies the internal operation of a computer system" when run.(page 6)

I guess it makes 3 jokes in one paper. Thanks for pointing that out. I can now rest confident that the "technicality" criterion is much more strict than I previously thought :
I just need to be sure that my computer programs
1)are stored on a medium that cannot be read by a computer
2) are run on a computer without memory
3) do not do anything that could change the operations of the said computer.

Of course 3) is a little difficult, because just loading into memory my software is not part of the normal operations of the computer. However, the computer must not have memory (point 2), and must not be able to read the medium on which my software is stored, so I guess the point is moot after all !

HAHAHA ...
The inmates are running the asylum. Too bad that they are handing out (selling in fact) weapons of mass business-disruption (patents).
 
 

 

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The Boards wording is even worse than I thought :

"have the potential of achieving the above-mentioned further technical effect of enhancing the internal operation of the computer"

Does this mean that the further technical effect was not even demonstrated ? It suffices that the instructions had the potential to procure this effect ?
How many other fields can get away with potential further technical effects ? None, that I know of, in any case.

Ad voice on :
"In an independent study, nine out of ten attorneys said the EPO preferred demonstrated technical effects to another leading brand of potential effects"
Ad voice off

Wow, I think I'll just go and write myself a whole host of potential further technical effects for my nanotech patents and see how far it gets me with the EPO ;-)



Alex
 
 

 

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Some quick comments since FightenedComputerScientist doesn't appear to know the background to the EPO technicality test and Athurgood seems to not understand patents at all.

First the easy one: Potential to proved a (further) technical effect. I see nothing wrong with this "potentiality", it merely says that the technical effect is only apparent when the computer program is running. The same could be said of a set of gears and chains for a bicycle - its all just a bundle of parts until someone rides the bike, so these bit of machinery still only have the potential to provide a "technical effect", or even to "control natural forces of nature". No Patent Office in the world would require you to always define an invention in terms of use if the "potential" technical or inventive or novel effect is clear from the component parts that you are claiming.

As for the technicality of a sheet of paper - there is a certain amount of common sense to this if you understand what the EPO are getting at. They are saying that the embodiment of computer code on a computer readable medium (even a sheet of paper) means that the claimed invention can avoid a DIRECT refusal of relating to a computer program "as such". It is a technical product and therefore NOT a computer program "as such". What they are NOT saying is that this makes it patentable under the other requirements such as inventive step - putting an obvious computer program on a disk or a punchard might avoid the computer program exclusion, but you've still got an obvious computer program on a well known medium and you still haven't got a patentable invention.

Then there is the requirement for a "further" technical effect. To be patentable, execution of the computer program must result in some technical effect beyond what you would normally expect from running a computer program - ie the steps that you describe of 1) reading some bits into memory and
2) setting some bits to 0 or 1 into said memory on their own do not make a computer program patentable since those are the expected, or elementary, technical effects of running a computer program.

But if, AS A CONSEQUENCE of all these 1s and 0s flying around, some further technical effect occurs eg an X-ray machine is controlled more precisely (improvement of something external to the computer) or a cache memory is used more efficiently (improvement of the internal operation of the computer) then so long as the way in which this further technical effect is achieved is not obvious, then you have a patentable invention.

Does that make it clearer?

That's not to say that I agree with this decision. I think the Board of Appeal lost sight of obviousness somewhere. I think they're absolutely right that there are technical things going on, but only as a consequence of doing obvious things. This is a patent that should not have been granted, but not for the reasons that everyone is complaining about.
 
 

 

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Were the signatories of the Munich Convention stupid ?
What does the exclusion of computer programs as such was supposed to mean if only unwritten computer programs are excluded as such ?

What is the sound of one clapping hand ?
Is IP law some kind of zen koan ?

Please, gerontius, share your enlightenment !
 
 

 

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AFCS: The writers of the Munich Convention were writing in the early 1970s when programs for computers were wholly mainframe operated adding machines that didn't get much more complicated than adding up accounts - funnily enough, that sort of thing still is not patentable in Europe.

I assume your Zen patent jibe is to do with the potential technical effect thing. Please do read other people's comments carefully. As I said: a computer program is patentable if, when executed, it provides a technical effect. You are not required in Europe to claim the computer program as it is being executed (otherwise you could only sue the end user), merely the features of the computer program which would produce that technical effect when it is executed. Just like you're not required to claim a bicycle when the wheels are actually turning so long as all of the necessary gears and chains are claimed. It's not that difficult a concept.
 
 

 

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For your information, my "jibe" about zen koan had nothing to do with "further technical effect" and was explained by the (zen) story of the ONE clapping hand:
it makes as much sense to wonder about the (absence of) sound made by ONE clapping hand as to wonder about the (non-)pantentability of UNWRITTEN computer programs.

To restate it more clearly :

1) The EPO Board of Appeal argued that any computer program written on computer-readable medium can be considered technical and must escape Art 52 exclusion.

2) I argued (without counter arguments from anyone), that ANY written medium can be considered "computer-readable.

1) & 2) -> 3) I argued that, according to the EPO Board of Appeal, ANY computer program written must escape the Art 52 exclusion. Hence ONLY UNWRITTEN COMPUTER PROGRAMS are concerned by Art 52.

4) I was wondering if people having no problem with 3) (namely the EPO Board of Appeal and you, gerontius) either thought:
a) that the signatories of the Munich Convention did not realize 3) was nonsense.
b) made such nonsense on purpose turning IP law into zen koan design to make us wonder until we become enlightened.

Should I take your answer about how simple were the computer programs in 70's as a nod into the a) direction ?

Anyway, you are very badly informed because "
The 1950s were a period of active efforts in AI. The first working AI programs were written in 1951 to run on the Ferranti Mark I machine of the University of Manchester: a draughts-playing program written by Christopher Strachey and a chess-playing program written by Dietrich Prinz".

So my question still stands :
Why on earth would the signatories of Munich convention write about the exlcusion of computer programs if only UNWRITTEN software is to be excluded by Art 52 ???
 
 

 

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To restate it more clearly :

1) The EPO Board of Appeal argued that any computer program written on computer-readable medium can be considered technical and must escape Art 52 exclusion.

Actually, this is what you haven't got right. It certainly didn't say anything of the sort. It doesn't say anywhere that just because a computer program is on a given support it avoids Art. 52(2) EPC. Indeed, as I already pointed out, the decision goes on to specify the other reasons why it considers that that particular claim was not excluded under Art. 52(2) EPC.
I am far from a Boards of Appeal cheerleader, but don't put things in their mouth that they never said.