- 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:
- Are inventions in the sense of the patent law something
immaterial?
- What is to be considered as technical in relation to computer
software?
- What is the relation between "mental teaching" and "physical
subject"?
- Under the EPC is it the problem or the solution or both that have
to be technical?
- Which criteria are indispensable under the term "technical"?
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
- discoveries
- scientific theories
- mathematical methods
- aesthetic creations
- schemes, rules and methods for performing mental acts for playing
games for doing business
- programs for computers; and
- presentation of information
were there because that matter was non-technical. Rather it states that
European patents are granted for inventions which are
- susceptical of industrial application
- new; and
- involve an inventive activity
.
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" (Naturkrdfte) 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 g1; similar also to
Benkard, 1993, N 45 on g1)
A better translation would be "natural forces" or "physical
forces" for "Naturkrdfte" 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:
- A certain book written in 1900 uses some oldfashioned wording.
- Man is part of nature and can be reduced to cells, atoms and
particles. Therefore the even the world of ideas can be
deterministically described in terms of natural forces. (?)
- It is not politically correct to insist on a sharp border between
mind and matter, because that might mean a revival of some old biblical
belief that man shall dominate the world, which has been put in
question by recent ecological debates.
- The EPO's Technical board of appeal has tried to apply the
concept
of "natural forces vs human mind" but somehow did not have an easy time
with it.
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 g166") 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:
- non-consideration of pure thought;
- non-consideration of uncertainty, speculation, manipulation
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.
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