Slashdot Mirror

> Thank god we avoided this cesspool in the EU a decade ago.

Sorry, no.

This is regularly circumvented by your usual legal shell game. Programs "as such" are not patentable, while "CIIs" (aka "Computer-Implemented Inventions") are. Straight from the horse's mouth:

" Patents for computer-implemented inventions: how does society benefit?
Patents as an incentive for innovation

As technology advances and matures, computer-implemented inventions are used increasingly in all fields of technology. In many cases the innovative part of a new product or process may well lie in the method underlying a computer program and/or its computational implementation [...]"

Disgusting, ain't it?

So the EPO has a very idiosyncratic interpretation on what software patents are. And it is granting hand over fist patents on things Dick, Harry, you and me would consider software patents.

http://www.engineering.unsw.ed... http://www.cqc2t.org/research And the patent docs https://register.epo.org/appli...

Yes, it's what people are afraid of, since the patent industry has been very clearly fighting for this for decades now. Their apologists will deny it, as usual. The EPO however is not so shy: http://www.epo.org/news-issues... lists software patents above biotech in their topics of interest with respect to the Unitary Patent.

Anyone who claims the Unitary Patent is about reducing costs and somehow "protecting innovation" is a troll, a liar, extraordinarily ignorant, and/or a paid lobbyist. This isn't magic. We've been watching this for more than a decade. I personally spent two years doing nothing else than studying the patent system and learning its motives.

The patent system is sociopathic, corrupt, and built on lies and the capture of politics by vested interests.

Alright, I bit. And found the patent in question. It does also claim any further modification (i.e. accidentally cross-pollinated) varieties (item 0047). Exactly how it would hold up in court I think remains to be tested, but yeah, fuck Monsanto's patent trolling (the patent is granted to Seminis seeds, which is owned by Monsanto)

There are no software patents in EU though.

That's not true. Or rather, it's true in the exact same way that there are no software patents in the US. Under In re Bilski, software alone is unpatentable, but if you recite a method that's tied to a machine, then it's patent eligible subject matter. EU law is identical - software alone is unpatentable, but a method that's tied to a machine is patent eligible. For example, EP2095366 is a patent recently granted to IBM corresponding to US Patent 7760821. Both are directed to a method that's implemented in software, but both are patent eligible by virtue of being tied to a machine.

I wonder how the court managed to sidestep European Patent Convention, which Germany is signatory. Article 52 says:

• (1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
• (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
  • (...)
  • (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers [emphasis added];

The patent expired a while ago - 2002 in Europe, anyway - see https://register.epo.org/espacenet/application?number=EP82108835&tab=main

Could you name a few EU software patents?

Sure. Easiest way is to go to the EPO's search site (http://ep.espacenet.com) and put in IBM, Microsoft, Apple, Citrix, VMWare, etc. as the Applicant. Flip through the results to ones that were published prior to about 2008 (because any later than that are probably still in examination), and start clicking. You'll find thousands of approved patents. Here's one, EP04794633.

Patent applications on file include WO2009125444A1, with US and European phases published as US 2011005506 (A1) and EP 2259998 (A1). You can see the European prosecution here: https://register.epo.org/espacenet/application?number=EP08873805

Cited documents in the patent include:EP1551032; E. CAMPARI, S. FOCARDI, V. GABBANI, V. MONTALBANO, F. PIANTELLI, S. VERONESI: "Overview of H_Ni systems: old experiments and new setup" 5TH ASTI WORKSHOP ON ANOMALIES IN HYDROGEN-DEUTERIUM LOADED METALS, ASTI, ITALY, 2004; S. FOCARDI, V. GABBANI, V. MONTALBANO, F. PIANTELLI, S. VERONESI: "Evidence of Electromagnetic radiation from Ni-H Systems" 11TH INTERNATIONAL CONFERENCE ON CONDENSED MATTER NUCLEAR SCIENCE 2004, MARSEILLE, FRANCE, 2004; CERRON-ZEBALLOS E ET AL: "INVESTIGATION OF ANOMALOUS HEAT PRODUCTION IN NI-H SYSTEMS" SOCIETA ITALIANA DI FISICA, NUOVO CIMENTO A, EDITRICE COMPOSITORI, BOLOGNA, IT, vol. 109A, no. 12, 1 December 1996 (1996-12-01), pages 1645-1654; G. MENGOLI, M. BERNARDINI, C. MANDUCHI, G. ZANNONI: "Anomalous heat effects correlated with electrochemical hydriding of nickel" IL NUOVO CIMENTO, vol. 20D, no. 3, 1998, pages 331-352; EP 2259998A1; and WO9520816; LEWAN MATS: 'Cold fusion may provide one megawatt in Athens' INTERNET CITATION, [Online] 02 February 2011.

So yes, there's a patent application there. Looks like it will be granted, too, based on the latest Examination Report.

That's only Germany, and the final legality of that declaration is still unclear.

The European Patent Convention clearly excludes computer programs from patentability, as seen in Article 52 (2) c.

However, the European Patent Office has flatly ignored this paragraph, and granted many software patents.

The debate continues.

The official EPO release: link

The EU Commission policy that started it all: link

"The European Patent Convention does not apply here. This is a matter of German patent law, which exists in parallel to the European system. German patent law states that software is not patentable "as such" (PatG 1, Abs. 3+4)."

Where do you think the "as such" qualification comes from?

"Today, all EPO member states have national patent laws, which, in their basic provisions, specifically in patentability requirements, have been harmonised with the EPC."

http://www.epo.org/topics/issues/computer-implemented-inventions/software.html

Article 52, Patentable Inventions, abstract :

"The following in particular shall not be regarded as inventions within the meaning of paragraph 1: [...]
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;"

Original text : http://www.epo.org/patents/law/legal-texts/html/epc/2000/e/ar52.html

But who cares about the actual word of the law ? All you need is a suitable interpretation.

Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying

Please stop talking bullshit, I own patents myself and never had to do that, see http://www.epo.org/

What on earth are you talking about? You clearly have no real experience of filing a European patent application at all. There IS a centralized European patent office. http://www.epo.org/ When you file a European patent application, you apply through the EPO. You certainly don't need to go 'finding a patent office that WILL grant you the patent'. No national office has the power to grant you a European patent anyway. Mod parent down.

Or you know, you can just file an application at the ALREADY EXISTING European Patent Office.

http://www.epo.org/patents/Grant-procedure/Filing-an-application/European-applications.html

This isn't about application/grants ... this is about enforcement (and consequently patentability).

Was this not proposed a long time ago by Hakan Lans

http://www.epo.org/topics/innovation-and-economy/european-inventor/nominees/2007/lans.html

... there are no patents on "software implemented" inventions enforcable.

Yet.

The usual suspects when it comes to heavy patent grabbing have been pushing hard, for years, to no avail (legally).

Yet. :-(

FYI: Article 52 of the European Patent Convention (EPC) reads (cif 2 lit c is relevant here):

Patentable inventions ...
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

http://www.epo.org/patents/law/legal-texts/html/epc/2000/e/ar52.html

The EU's patentability rules already disallow business model patents. To quote the relevant parts:

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

...

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

Circular definition or not, the system has held up pretty well since it was introduced in 1973, most (all?) member states already had similar restrictions before the rules were unified.

Some facts about oppositions in the European Patent Office: 1. They must be lodged within 9 months of grant.
2. Anyone can file an opposition, including a "straw man", who is doing it for someone else. So opposing is not admitting infringement see http://www.strawman.info/
3. You do not need to appoint a professional representative; you can do it all yourself.
4. The opposition is decided on the facts as understood by the opposition division of the EPO. Unlike a court case, what is said in the hearing or in the opponents arguments is not decisive. If you file an opposition, present clear prior art, and completely botch the arguments and formalities, you may still win! If there is something that the Opposition Division does not understand, they will ask for clarification.
5. There is no award of costs (save in the event of flagrant abuse of procedure, which is almost unheard-of). So the patent proprietor can turn up with loads of lawyers, and you, the opponent, do not have to pay.
6. There is no come-back against an unsuccessful opponent.
7. An unsuccessfully opposed European patent has no greater legal strength than an unopposed one.
8. If you are only partially successful (you get the patent limited but not revoked) you still cost the patent proprietor money.
9. If you are entirely unsuccessful (but have at lease made a case) you still cost the patent proprietor money.
10. Look at http://www.epo.org/ and you will get good guidance.
Anyone who sees a bad European application being published should watch it, and if is granted and still bad, then oppose the damned thing! The European patent system was designed for this to happen. If the industry ignores bad patents, then the system will not work.
After the nine-month opposition period, the granted patent can still be challenged, but it is much harder and very much more expensive.

HTH
Anonymous European Patent Attorney

Moving on, your understanding of what is patentable appears to be erroneous, as can be seen in the decision of the EPO board of appeals on case T 0208/84. As the decision states, a mathematical method is not patentable, but a technical process that makes use of a mathematical method is, provided of course that it is new, an inventive step and is susceptible of industrial application. Moreover, the particular means of implementation, e.g. hardware versus software (or pulleys and levers if you wish), does not impact the patentability or otherwise of that technical process.

On the whole, you have not provided any meaningful argument as to why an invention ought to be patentable if it is implemented with hardware (or pulleys and levers), but not if it is implemented with software. Fortunately, the European Patent Office is run by more thoughtful individuals, who are concerned with the logical consistency of the patent process, and hence disagree with your view.

The current practice of the European Patent Office, supported by the Administrative Council, is to interpret the EPC to mean that software in itself is not patentable, but a patentable technical solutions that happens to be implemented in software does not cease to be patentable simply because it is implemented in software. Your (mis)reading of the EPC is not particularly relevant, I'm afraid. After all, if any individual could interpret the law in his own way, it wouldn't be worth much, would it?

Remember that in order to be patentable, an invention implemented in software must still meet the same requirements as any other invention. Most of the complaints I've heard about the granting of software patents in the United States actually relate not to the fact of being implemented in software, but rather to triviality: patents are being granted for software 'inventions' that do not really qualify for patent protection, because they are not actually new, do not involve inventive steps, etc.

The proposed directive on computer-implemented inventions (CII) was also supported by the European Patent Office, as in effect a codification of existing case law and practice by the EPO. The position of the EPO explained here notes that inventions implemented in software are patentable in Europe, with the notable exception of the UK, as long as they make a technical contribution.

This is different than the EU, which allows for "Computer Impelemented Invention" or CII. This is an invention as executed by a device. Though in reality, CII patents have been granted when there was no device at the time of filing, so that's even a misnomer.

Regardless, the ruling is a big win for the software industry as it makes the test for software patentablity much, much higher. Essentally, an examiner should now be able to say "this exists in the regular world in exactly the same manner, no, you can't patent it just because you reproduced it on the web".

The European Patent Office has been granting stupid software patents for years, even though they'll remain impossible to enforce pending the new legislation. For example, see some of Ericsson's patents here.

As you would expect, the average European is just as clueless about software patents as the average American. I wish this was not true but it is. It's possible that there's a higher awareness within the political parties, but not necessarily in favour of the free software position. At least the European greens in the parliament seem to have some clue.

Regards,

/ A EUropean who will take this opportunity to help vote in representatives this weekend with a favourable view on this matter.