Subject: Re: Examples needed against Soft Patents
From: Seth Johnson <>
Date: Fri, 31 Dec 2004 02:51:59 -0500

Russell McOrmond wrote:
> On Thu, 30 Dec 2004, Simo Sorce wrote:
> > Another humble opinion on the hardware vs software debate:
> >
> > It does not make sense to draw a line between hardware and software.
> > The right line is between controllable forces of nature vs. logic.
>   The problem is (and this is taken from the European forums), that there
> are those who state that since logic in electronics "controls the flow of
> electrons" in a logic gate that applications of logic (as opposed to
> unused logic?) should be patentable.  This suggests that the
> non-patentability of logic and mathematics is just a subset of the utility
> question, not a question of statutory subject matter.

But, except for the confusion wrought specifically by the EPO's
weird positioning of the "technical effect," this approach is
clearly wrong.  The statutory subject matter is simply a first
step, excluding certain things prior to any other considerations.

>   I think this "logic" is patently nonsense, but it is the logic that many
> in the legal profession seem to be living under.

Yes, they really want it to be "if it's innovative, you must
consider whether you can possibly find a way to patent it," not
the practice as it was before IBM's Teufel started messing up the

> This is why I don't
> think legal analysis will do the trick as patent lawyers and patent agents
> will always have a very strong special interest in unlimited
> patentability, and will manipulate language in legacy laws to get what
> they want.  It requires people outside of the field of patent law to amend
> the law to try to mirror changing economic circumstances.

Legalism can hardly ever be counted on; you have to pursue policy
from a position embedded in a political formation of some sort.



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