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August 9, 2005

UK judge has problem defining "technical problem"

Axel Horns reports on a recent decision by Judge Prescott of the Royal Courts of Justice in London effectively rejecting two patent applications (here and here) on what I think can fairly be characterized as computer-implemented business methods.

Judge Prescott expounded at length on how difficult it is to define the terms "technology" and "technical" -- definitions that are essential if "technical contribution" is to serve as a legal standard for distinguishing patentable from non-patentable subject matter. Judge Prescott rightly observes that "technology" is "a horribly imprecise concept" and that "trying to define the words 'technical' or 'technology' is a dead-end."

Although I agree with his observations, they beg important questions:

• Why are the terms "technology" and "technical" so hard to define?


• Why does the problem of defining these terms arise only in certain kinds of cases -- such as those involving software and business methods -- but not others?

Patent law seems to do a pretty good job of separating patentable from non-patentable subject matter in many areas despite the vagueness of these terms. More generally, the law deals with vague terms such as "reasonable" every day without breaking down.

As you might have guessed, I have an explanation: computers are making it possible to automate processes that previously only human beings engaged in the "liberal arts" (as opposed to the "useful" or "technical" arts) could perform. In the past, machines automated processes in the “useful arts,” such as manufacturing, construction, and transportation. Only human beings, exercising their creativity and judgment, could perform services in the “liberal arts.” Lawyers practiced law, doctors practiced medicine, businesspeople created and executed business plans, and authors wrote prose and poetry.

Intellectual property law reflected and respected this distinction. Copyright law protected works in the “liberal arts,” while patent law protected creative works in the “useful” (technical) arts.

But now computers are automating processes in every field of human endeavor, including those falling within the “liberal arts”: medicine, law, business, and the visual arts to name a few. Although machines have always been used in these fields, software is the first technology to enable end-to-end automation, as software that can recognize and translate speech demonstrates.

It is the widespread end-to-end automation of business methods and other methods previously classified within the "liberal arts" that is forcing the law to confront the ambiguity of terms such as "technology," when previously such ambiguity could be overlooked safely enough, except in extremely rare instances.

Although I don't have an answer to the ultimate question of how far patent law should extend its reach, I do think the story I've just told at least helps to understand both why we are seeing so much controversy over the definition of "technology" and how computers are blurring the line between the technical and non-technical.

Posted by Robert at August 9, 2005 12:56 PM
category: Software Patents

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