The debate on software patentability also addresses old philosophical questions : are computing machines intelligent ? Can we think of making software applications patentable withtout asking what represents these applications for humans and for the european society ? If programmed machines are intelligent, can we patent intelligence ?
When a Member of the European Parliament (MEP) studies an invention controlled by a program (the ABS break system or the mobile phone), he or she may think that the software application is intelligent, that it is new and that it contributes significantly to the state of the art in the technical domain. Hence, the MEP may be favorable for the software application to be patented. This vision may be partial but this is the main argument for those writing the proposal.
However, the software application only imitates the human reasoning. In the case of the ABS break system, the joint reasonings of the physician, the mecanician and the mathematician constitues the invention and therefore constitutes the argumentation for the patentability. The embedded software application is a text that can be read by the computer architecture and that implements the three scientist reasonings. In no way, the software programmer can pretend being at the beginning of the invention.
Let us take another example: the chief of a clothes-making plant. His role is to pilot the employees to meet the production expectations. When a new employee comes for example, his role is to tell him/her the instructions for working.
Let us imagine that we plan to replace this chief by a machine driven by a computer program. All employees, including the new ones, will speak to the machine for any instruction or problem during the work. The chief wants the plant to continue in the right way and will be severe for evaluating the machine. He will say that the machine is intelligent and acceptable if it can do as much as he can do. If this is the case, no doubt that the chief will be impressed by the machine.
If we let this machine to be patented, then the chief could patent his way of managing the plant since the machine does exactly what he does. But would it be normal to patent a way of working ? It seems that our culture excludes this possibility of patent. If the chief wants to reuse his skills, he can write a book describing them and get the money of copyright. Never we would think that he would patent his way of working, being able to prevent other people to apply his method. Do we want the human intelligence to be patented ? I guess no.
It goes the same way when talking about software applications in general and without exception. What should be done is recognizing the fact that we do not want to allow patents on human reasoning, or human intelligence. Since software applications only imitates human reasonings, no line of of code in any program should be patented.