%% LyX 1.5.4 created this file.  For more info, see http://www.lyx.org/.
%% Do not edit unless you really know what you are doing.
\documentclass[english]{letter}
\usepackage[T1]{fontenc}
\usepackage[latin9]{inputenc}
\usepackage{setspace}

\makeatletter
\usepackage{babel}
\makeatother

\begin{document}

\address{Roy S. Schestowitz}


\letter{Enlarged Board of Appeal\\
European Patent Office\\
Erhardtstrasse 27\\
80331 Munich, Germany}


\opening{To whom it may concern in the Enlarged Board of Appeal,}

\begin{onehalfspace}
I hereby submit my answers to the questions about case G3/08. As a
computer scientist in Europe, the subject matters to me personally;
in particular, the effect of this matter reaches Free/Open Source
software. It is increasingly used and developed in Europe, whose legislation
in the area affects progress.

The questions are phrased in such a way that they almost entrap the
answerer, so replies address entire blocks of questions. I shall address
the questions raised by the EPO, in turn.

\textbf{QUESTION 1: CAN A COMPUTER PROGRAM ONLY BE EXCLUDED AS A COMPUTER
PROGRAM AS SUCH IF IT IS EXPLICITLY CLAIMED AS A COMPUTER PROGRAM?}

I fear that permitting such loopholes to exist leads to the actual
permission of software patents. To quote Marshall Phelps from Microsoft,
``{[}The EPO] can\textquoteright{}t distinguish between hardware and
software so the patents get issued anyway.\char`\"{} By allowing ambiguity,
the EPO essentially leaves the door open to software patents, in which
case the policy becomes moot.

\textbf{QUESTION 2: (A) CAN A CLAIM IN THE AREA OF COMPUTER PROGRAMS
AVOID EXCLUSION UNDER ART. 52(2)(C) AND (3) MERELY BY EXPLICITLY MENTIONING
THE USE OF A COMPUTER OR A COMPUTER-READABLE DATA STORAGE MEDIUM?
(B) IF QUESTION 2 (A) IS ANSWERED IN THE NEGATIVE, IS A FURTHER TECHNICAL
EFFECT NECESSARY TO AVOID EXCLUSION, SAID EFFECT GOING BEYOND THOSE
EFFECTS INHERENT IN THE USE OF A COMPUTER OR DATA STORAGE MEDIUM TO
RESPECTIVELY EXECUTE OR STORE A COMPUTER PROGRAM?}

This suggests that a separation between hardware and software is possible
despite the fact that one requires another in order to operate. There
is no program which is separable from hardware because without execution
it exists only in the minds of people, much like poetry. Any software
patent is able to characterise itself with the combination of hardware
that it interacts with, so it is irrelevant whether or not hardware
is mentioned in a patent application. If the inventor was to construct
a novel physical entity, its physical attributes -- not mere zeroes
and ones that pass through it -- may merit a patent.

\textbf{QUESTION 3: (A) MUST A CLAIMED FEATURE CAUSE A TECHNICAL EFFECT
ON A PHYSICAL ENTITY IN THE REAL WORLD IN ORDER TO CONTRIBUTE TO THE
TECHNICAL CHARACTER OF THE CLAIM? (B) IF QUESTION 3 (A) IS ANSWERED
IN THE POSITIVE, IS IT SUFFICIENT THAT THE PHYSICAL ENTITY BE AN UNSPECIFIED
COMPUTER? (C) IF QUESTION 3 (A) IS ANSWERED IN THE NEGATIVE, CAN FEATURES
CONTRIBUTE TO THE TECHNICAL CHARACTER OF THE CLAIM IF THE ONLY EFFECTS
TO WHICH THEY CONTRIBUTE ARE INDEPENDENT OF ANY PARTICULAR HARDWARE
THAT MAY BE USED?}

Hardware responds to signals that it is capable of interpreting and
reacts in a predefined physical fashion. For example, a hard drive
uses a physical process to produce output upon receiving a known signal.
As such, any process described in algorithms may effect a physical
device in one form or another, but its role in the process is as abstract
as one's thoughts. To suggest that software changes the form of something
physical is to suggest that one's mere thoughts can lead to muscular
motion and thus be considered an invention. Once the ownership of
one's ideas -- as expressed in broad terms -- becomes possible, copyrights
can be rendered moot and instead block \emph{any} expression of ideas
-- be it an algorithm, a musical note, or the assembly of pertinent
facts/parts -- which is what every invention really is about. There
needs to be a physical device which is new and unique. Without innovation
in physical terms, patentability becomes not only absurd but dangerous
too. In Re Bilski is an example of broadening the scope of patents
too far.

\textbf{QUESTION 4: (A) DOES THE ACTIVITY OF PROGRAMMING A COMPUTER
NECESSARILY INVOLVE TECHNICAL CONSIDERATIONS? (B) IF QUESTION 4 (A)
IS ANSWERED IN THE POSITIVE, DO ALL FEATURES RESULTING FROM PROGRAMMING
THUS CONTRIBUTE TO THE TECHNICAL CHARACTER OF A CLAIM? (C) IF QUESTION
4 (A) IS ANSWERED IN THE NEGATIVE, CAN FEATURES RESULTING FROM PROGRAMMING
CONTRIBUTE TO THE TECHNICAL CHARACTER OF A CLAIM ONLY WHEN THEY CONTRIBUTE
TO A FURTHER TECHNICAL EFFECT WHEN THE PROGRAM IS EXECUTED?}

If specialised knowledge is required to write a particular program,
i.e. series of commands, then it is likely to involve computer-independent
knowledge such as mathematics or physics. To acquire a monopoly on
areas of science where nature's rules cannot be refuted should require
the inventor to seek a patent in his/her particular field, not the
field of software engineering. The question begs to insinuate that
scientists deserve protection for their hard work, but rarely does
this work have anything to do with computers; software is just where
these ideas happen to be applied, although they could equally well
be applied using pen and paper.

On a separate note, in order for Europe to preserve and promote autonomy,
the rejection of software patents is encouraged. This gives tremendous
advantage to those are are ably programming without the burden of
lawsuits, filing of papers, and studying of too many papers. It gives
European programmers the upper hand. The field of software is highly
complex and there are many intersections in implementations of different
ideas. It is not practically possible to ensure that one program does
not `collide' with another at a binary level and since composers of
software are able to program without anything but a computer (and
distribution likewise, thanks to the Internet), to impose unnecessary
limits is virtually to forbid many the art of programming, turning
it into a scarcely-explored field possessed and controlled by a small
number of privileged classes with portfolios that represent monopolies
on mathematics. This imperils both the economy and the value of innovation;
history teaches that most brilliant software technologies are conceived
by a small group of enthusiasts, and not with a patent application.
\end{onehalfspace}


\closing{Yours sincerely,\\
Roy Schestowitz\\
Manchester, England}
\end{document}
