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#GnW: Basic laws of human civilisation often take the form of the Ten Commandments: Thou shalt not %(dots)  Further examples are: the rules of Buddhists, the human rights catalogue in constitutions of modern states and %(dots) the list of exclusions from patentability in %(ar:Article 52%(pe: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 %(q: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.

#Tim: The Biblical Teaching

#Wop: Recent Exegetic Developments

#Fea: Further Reading

#Tsa: The Ten Exclusions and the Technical Board of Appeal

#Ten: The Ten Commandments and the Holy Council

#cgt: Mathematical methods, schemes and rules for performing mental acts or doing business, programs for computers, arrangements of information etc are not patentable.

#lsl: Idolatry, Deception, Theft, Adultery, Murdering etc do not deserve blessing.

#i1l: 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

#mWo: 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)

#ptn: patent

#bes: blessing

#thW: Thou shalt not attempt to obstruct thy neighbor's work of creating, publishing and distributing his own copyrighted programs.

#tWW: Thou shalt not desire thy neighbor's wife, house and what is his.

#Isd: 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 %(s: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.

#IlW: 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 %(s: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.

#HWe: Disclaimer:  This section is not meant to offend any religious faith.  The theological doctrines developped therein are %(e:not) those of the Roman Catholic Church or Societas Jesu nor of any Christian, Buddhist, Muslim or other confession.

#IoW: I want a patent for this programming solution, because it is not a program as such.

#Ist: I want a blessing for this appropriation of bank money, because it is not robbery as such.

#TrW: The patent is granted, because the program cannot be denied to have a further technical effect.

#Tbe: The blessing is given, because this robbery cannot be denied to have a further ethical effect.

#scW: [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.

#eca: 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.

#Wsc: With regard to what transfer-related righteous deeds can be said to have an %(q:ethical character) the conclusion to be drawn from the Holy Council's recent %(PBS) 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 %(q:righteous deed).

#Inn: 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.

#IeW: 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.

#BAW: 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.

#Bro: 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.

#Ihm: In its most recent decision, the Episcopate of the Church of Germany loosens the time-honored immediacy principle

#IWo: 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.

#Tao: The practise of the EPO proves that under European Law computer programs are patentable.  Only computer programs for computers %(q:as such) are not patentable.

#Tel: The practise of the Holy Council proves that under the Ten Commandments stealing is generally considered worthy of blessing.  Only stealing %(q:as such) is sinful.

#Ikr: In an influential %(be:law journal article), opinion leaders of the patent movement argue as follows

#WtW: Patent law experts have still not reached consensus in what a %(q:program as such) is.  %(wt:Some) say it is the source code, %(pa:others) say it is machine executable work, %(km:yet others) say it is the intellectual concept.  In view of this confusion, patent experts are currently working on all channels to have the confusing %(q: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.

#Lir: head of computing department of German Patent Office

#dne: the patent lawyers %(LST)

#Sut: presiding judge of the %(bg:Federal Court of Justice)'s Patent Senate

#Wds: Theologians have not yet reached a consensus on how many angels can dance on a needle tip.  The same holds for the definition of %(q: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 %(q: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.

#sWe: In a %(ka:government-ordered expertise and other texts), %(AHH) argues approximately as follows

#Ptf: The examining office has no way to tell, whether a claim under consideration is directed to a %(q: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 %(q:computer program as such) or not can only be attributed to an error of the legislator.  To clarify matters, we should only speak about %(e:computer-implemented inventions) or %(e:computer-implementable inventions).

#TtW: The Council has no way to judge whether a blessing request under consideration is directed to %(q: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 %(q: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 %(e:property-relevant merits) or %(e:potentially property-relevant merits).

#ToW: The Abbey has no way to judge whether a request under consideration is directed to %(q: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 %(q: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 %(q:body-performed spiritual exercises) or %(q:body-performable spiritual exercises).

#Tef: The only apparent reason for distinguishing %(q:technical effect) from %(q:further technical effect) in the %(c:IBM Computer Program Product) decision was because of the confusing presence of %(q: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.

#Tpd: Last year, the Monasterial Council explained why monks and nuns can now omit the cryptic justification formulas that were needed for %(e:exercitia sexualia) in earlier years

#TWW: The only apparent reasoning for %(ag:distinguishing %(q:clerical effect) from %(q:further clerical effect)) in the %(SJ) decision was because of the confusing presence of %(q: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.

#cWs: %s vs %s

#TfW: Today the EPO is financed by fees for the patents which it grants.

#Tni: In Luther's times, the Church was financed by letters of redemption.

#Wju: 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 %(e:further technical effect), such as making a computer do a better job.

#WWj: 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 %(e:further property-promoting effect), such as creating new markets for patent experts.

#MosesT: Moses, the Ten Exclusions from Patentability and %(q:stealing with a further ethical effect)

#MosesD: Computer programs are both unpatentable and patentable in Europe.  How did the European Patent Office's Technical Boards of Appeal gradually manage to patent the unpatentable?  Where taboos and artificially induced complexity mine the road, satiric comparison is often the fastest way to a thourough understanding.

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