For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Wednesday, 19 December 2007

Mewsings on the word ‘technical’

Warning: this post is quite technical, and some less well informed readers might therefore find it difficult to understand.

After recent technical discussions (see IPKat posts here and here), the IPKat was wondering what exactly the EPO means when it uses the word ‘technical’.

www.totalleh.com - click to visitWhile he was pondering this, a “Communication pursuant to the Decision of the President of the European Patent Office dated 12 July 2007 on the filing of priority documents (Special edition No. 3, OJ EPO 2007, 22)” landed on his desk.

(Right: the IPKat gets into techno music for the occasion; click the picture to see more)

The communication effectively tells the applicant that they don’t technically need to go to the bother of getting certified copies of priority documents (as long as they come by technical means from certain selected patent offices) because the EPO have been technically able to get copies themselves electronically, at technically no charge to the applicant. Which is very nice of them, and of course is just the sort of thing that is technically possible in this modern technological age.

What made the IPKat’s technical whiskers spring to attention, however, was the following sentence:

“It should be noted that, for technical reasons, this communication may be issued not only if the priority document has been included in the file ectronically [sic] in accordance with the abovementioned Decision but also if it was filed by the applicant.”

Now what ‘technical reasons’ could there be? Interpreting this according to the EPO technical boards of appeal, the technical reasons may well possess ‘technical character’, and couldn’t therefore technically relate solely to computer programs, business methods or any of the other ‘exclusions’ under Article 52(2) EPC.

Given that the communication technically relates to computer programs retrieving copies of priority documents, as part of the business method (‘administrative task’, if you will) of processing patent applications by technical means, how could there be any ‘technical character’ regarding the reasons why the communication might have issued if the priority documents were instead technically filed by the applicant? Could there be a special cleverly-designed piece of technical machinery somewhere at the EPO where all priority documents have to be technically processed? Or does computerised technical processing of priority documents inherently possess technical character?

Another thought, however, occurred to the IPKat. The word ‘technical’ could instead mean what he always thought it to mean, which is to say: “this is too complicated to explain in a few words, and too difficult for mere mortals to understand, so we would rather you didn’t worry about it until you are sufficiently well-informed”. That seems to make much more sense, particularly as the EPC is full of the word being used in this sense*. The definition of ‘technical character’ consequently also becomes much more easy to understand, which goes something like: “having a character that is quite complicated and cannot therefore be expressed in words that a normal person can understand, but which I, as a well-informed clever person, can”. Now, all we have to do is find a representative clever person...

Such as: “technically qualified” (A18-22), "technical opinion" (A23), "technical information" (A85), "technical means of communication" & "technical requirements" (Rule 2), "technical or legal difficulties" (Rule 11), "technical process" (Rules 27&29), "technical preparations for publication" (Rules 31&32), "technical designation of the invention" (Rule 41), "technical field" & "technical problem" (Rule 42), "technical features" (Rule 43), "technical relationship" (Rule 44), "technical means" (Rule 124) etc. etc.

7 comments:

Anonymous said...

Only yesterday, smebody urged the IPKat to be more fun. What a neat response. What could be more fun than this. David, I laughed out loud. Brilliant contribution. I can't wait to see what comments it brings forth. Well done indeed David. Come on, EPO fans; now you make us laugh.

mupple said...

David

Were you not at the seminar at CIPA Hall a few years ago when three members of EPO staff were very clear on this point?

When the session was opened to questions from the floor, one of the staff members said very clearly, in response to a question, that technical character was "a bit like a camel: hard to define, but you know it when you see it".

So, clearly, the communication may be issued not only if the priority document has been included in the file ectronically in accordance with the Decision but also if it was filed by the applicant, at the whim of the camels.

Was anybody there? Does anybody remember his name? I'm sure it'll come to me if I think about it, but it hurts ...

Gobhicks said...

Technically, if you look it up, “technical” etymologically spkg, has to do with “special knowledge”, not “physical processes” at all.

So go figure.

Semantic compliments of the season tae ane an a’

More fun?

See: The Stooges, Funhouse – greatest album ever made.

Dictionary owner said...

I did look it up, actually, in several dictionaries and although the balance was that the word meant generally relating to a specialist body of knowledge all felt to constrained to mention the application of the physical sciences to industry as an example and one even gave that example as a separate possible meaning all by itself. They also generally agreed that the latter was the meaning of "technological", which is also what you actually get if you look up "Technik", so "technological character" may be a nicer phrase to use, not that it is going to help us any.

The dictionary gave lots of other tech- words. Anyone fancy reviving "tecnicist" to mean person skilled in the art?

David said...

In response to mupple's query, I unfortunately wasn't there to hear those wise words from the EPO (or if I was it didn't sink in at the time). I bet anyone with half a brain could define a camel more precisely than the EPO can define what technical character means. Not really a very good analogy then. I could certainly recognise a camel by its colour, hump(s), four legs, splayed toes and tendency to spit.

As for dictionary definitions, the last two comments kind of show that they don't help at all. So why does the EPO persist with the consensual delusion, bordering on religious fervour, that the meaning is in any way clear?

Gobhicks said...

Having thought about this quite a lot over more years than I care to count, and this being a blog comment and not a peer-reviewed >technical< paper...

I don't think the word "technical" excludes anything really. In EPC Rule 29 terms it just means "specific and concrete".

Industrial applicability is exclusive of some things, but basically must pretty much mean "commercially valuable".

52(2) is where its at as far as meaningful exclusions go, and they all have to be judged on their own merits.

Maybe they are redundant. Maybe not. Probably somewhere in between.

This is the 21st century. Things have changed an awful lot in my professional lifetime. IP rights have assumed a level of socio-economic importance that begins to boggle the mind, if one is even conscious of the issues. Lots of things need to be re-thought.

This interweb-thingy is the enabling technology for lots of stuff, good and bad, new and better organised crime being but an obvious example, a new, more sophisticated, socially beneficial and envoronmentally friendly IP rights framework being a less (non-?) obvious example.

But I'm just an old idealist who knows that utopia is a mirage but that shooting for it is how we progress and survive.

Anyhow, I'm back off to listen to Funhouse, waiting for the sax to kick in in "1970 (I Feel Alright)".

Peace and hope in 2008

Anonymous said...

I'm thinking of Lord Hoffmann, and his question "What was the inventor using the language of the claim to mean?". We find out by mulling over the content of the patent specification, a finite task that all persons skilled in the art are competent to perform. But what about "technical?". What was the EPC using the language "technical" to mean? The answer is ONLY to be found in the day to day seepage out of the EPO of TBA Decisions. In other words, "technical" means today what we say today that it means, and what it will mean tomorrow remains to be seen. I like to think that, with time, the data points represented by individual Decisions will cluster, to reveal the meaning of "technical" with ever sharper clarity. Anyway, at the margin of technicality, does it really matter all that much?. Either the IPR is in a patent pool, or its with a patent troll who (for one reason or another) ain't going to get to a Final Injunction.

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