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One article from 8 years ago is hardly the most convincing rebuttal.

• 18 November 1998: IBM kills study on software patents by the Whitehouse
• 1 July 1998: IBM manages to push through patents on "computer programs that have a further technical effect beyond the normal physical interaction between a computer and a computer program" at the EPO (represented by Fritz Teufel, their head patent lawyer in Europe). An example of such a further technical effect is reducing the number of mouse clicks (as in Amazon One Click).
• 8 September 2000: Pension Benefits case: IBM manages to push through "program claims" (claims on computer programs on a carrier) at the EPO.
• 30 October 2000: Fritz Teufel, IBM head patent lawyer, takes part in a German debate representing the pro software patents side (German article)
• IBM: $1.6 billion revenue from patent licensing in 2000.

One article from 8 years ago is hardly the most convincing rebuttal.

• 18 November 1998: IBM kills study on software patents by the Whitehouse
• 1 July 1998: IBM manages to push through patents on "computer programs that have a further technical effect beyond the normal physical interaction between a computer and a computer program" at the EPO (represented by Fritz Teufel, their head patent lawyer in Europe). An example of such a further technical effect is reducing the number of mouse clicks (as in Amazon One Click).
• 8 September 2000: Pension Benefits case: IBM manages to push through "program claims" (claims on computer programs on a carrier) at the EPO.
• 30 October 2000: Fritz Teufel, IBM head patent lawyer, takes part in a German debate representing the pro software patents side (German article)
• IBM: $1.6 billion revenue from patent licensing in 2000.

The European Patent Office will only grant patents which comply with the European Patent Convention (EPC). It is as simple as that.

The suggestion that European Union directives automatically propagate into a change of the EPC is wrong. In most cases, there is still the requirement of a diplomatic conference of all the EPO member states (and remember that this is not only the EU!).

Indeed, the President of the EPO has expressed the intention to respect/follow European Union directives, but it should be clear that this is not at all an automatic procedure. This just means that, whenever there is a new European Union directive, the President of the EPO has the intention to translate this into the EPO patent policy.

The success for such a translation is entirely based on the enforcement of such by the Administrative Council of the EPO, which is constituted by representatives of the Patent Offices of the member states of the European Patent Organisation.

For more information:

http://www.european-patent-office.org/new_hp/gen_p res/index.htm

I guess I don't understand the EU proposal regarding software patents. Here in the US, there is no specific regulations regarding software in regard to patents. Some inventions are accomplished using software. Patentability (in theory) is based on novelty, originality, etc.

There's also the very important concept of "patentable subject matter", i.e. whether or not it potentially could be patentable at all. Although in the US this concept has been widened to "everything made by man under the Sun", this still excludes some things (like e.g. laws of nature). In Europe, there are more exclusions (see below).

Admittedly, we have some problems with trivial things being patented, which in turn set precedent that led us down this spiral.

The problem with trivial patents is basically inherent to the patent system. "Non-obvious" does not mean the same in patent law as it does in real life. It's basically an extended novelty test: novelty checks whether or not what you claim to be your invention has already been published somewhere or not, non-obviousness tests whether it isn't a literal (and then I mean really "literal") combination of published things.

The reason is that it is impossible to set an objective standard which can be consistently applied to determine the "inventiveness height" or so. For the patent office, it is however very important to have such a standard. Patent officials know this, see e.g. this discussion between a deputy director of the UKPTO and a programmer. There is nothing you can do about this without overhauling the entire way patent law works, and people are very reluctant to do this. You cannot "fix" it by improving examination.

Now, traditionally, it has been assumed that despite its flaws, the patent system had an overall positive effect. If you patent a trivial improvement to a hammer (e.g. a hook at the bottom to you can hang it onto a wall), this patent could have little value (because people may be able to work around it easily, or because no-one would be interested in your improvement).

Since software is pure mathematics (all a computer can do is compute), patenting improvements in software itself is patenting math improvements (when this math is interpreted by a computer). Pretty much all math improvements are trivial by design. The whole mathematical system is built that way. And patenting one improvement blocks a whole lot of other people. Someone even made a theoretical proof using lambda calculus showing that because of this, several assumption made about the patent system simply are not true for software.

From your description, it sounds like the EU has a similar set of criteria. So what is the proposal regarding software patents?

In Europe, currently there are 4 requirements for patentability: you have to have an invention (patentable subject matter) and this invention must be new, non-obvious and industrially applicable. One by one:

• invention: since you don't know what will still be invented, you can't positively define what an invention is. Therefore, they have adopted a negative definition, i.e. a list of things that are not inventions. You can find the list in Article 52(2) of the European Patent Convention (EPC). Among others, the list of exclusions includes mathematical methods, rules for performing mental acts and computer programs.
• Novelty: not yet published anywhere
• Non-obviousness: not a literal combination of other published things
• Industrially applicable: you can make money with it.

Now, in article 52(3) of the EPC (on the same page), they say that the exclusion of those things being inventions only applies to those things "as such". This originally meant that if

Patents have never before been applied to works that are immediate realisations of pencil and paper work

The Board is aware that its comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

Public key cryptography might be a really good idea, but that still doesn't mean it deserves a patent. Certainly as things stand in the EU at the moment it cannot be patented because mathematical methods are not "inventions". How long this will be true remains to be seen. of course.

They're worried about being sued because someone on their network could inadvertantly install and run software that is patented by someone, somewhere in the world? Talk about a barrier to linux. Fear has grip. But what is the true mechanism, that breaks what is arguably weak patent protection in the first place? Same answer as last time: THE END USER FROM FREAKING HELLLLLLL

Why don't they make duplicate ghost installs and user profiles for each categorization of employee (in state offices) and update the ghosts when legislation and job function changes - what state employee users can and cannot do. They could do automatic updates on a schedule - that'd motivate consumers to /platforms.

Or, don't enforce patents on software . . . Article 52 - Patentable inventions

I'm kinda fond of the dot-communism myself.

• Europe: 49.900 euro
• Japan: 16.450 euro
• USA: 10.330 euro

These are average costs including filing fees to the PTO, and fees to the patent attorney drafting the patent. The costs for actually making the invention are of course not included, however. The reason why European patentets are so much more expensive is mostly because they have to be translated into so many languages.

The parent's estimates for what it costs to do patent litigation are also in line with what other sources quote. So when someone comes and claims that patents are to protect the little guy against big corporations, it's good to have these numbers in mind.

Read, for example The European Patent Convention on the "Inventive Step" which is required for an invention to be patentable:

An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

In the USA, the Patent Act (sec 103a) reads:
A patent may not be obtained [...] if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
(emphasis mine)

The problem isn't the legal requirement, the problem is lack of enforcement due to lax, unwilling or just unskilled patent examiners, possibly coupled with a general "let it pass"-attitude.

There's no "European" patent office

Each country within the EU has its own separate patent office, and its own separate patent laws.

Note however that the EPO is not an EU body, it lives completely outside the EU (there are countries who signed the EPC and which thus recognise the EPO, but which are not in the EU).

Some countries permit the patenting of software patents, some currently do not.

However, when you want to enforce a patent, you have to do so before a national court in the country where you want to enforce it. When you look at this, only in the UK software patents have been successfully enforced in the general case. In The Netherlands for example, no-one has ever even tried to enforce a software patent. In Germany, software patents have been generally unenforceable until now.

Even if (when) the EU patent directive is introduced there still will not be a "European" patent office, or even a Europe-wide agreement as to what is and is not patentable.

As you may have seen, article 52 EPC excludes computer programs, mathematical methods and business methods from being an invention (and thus from patentability). The catch is article 52(3), which states that those exclusions only pertain to the subject matter "as such". What this used to mean, is that you could never get a patent on something where the only contribution lied in one of those things (maths etc), but that otoh an patentable invention which also contains a computer program, does not suddenly become unpatentable

Since the EPO wanted to start granting software patents (their advisory board consists of corporate lawyers from IBM, Nokia etc, and they make money per granted patent), they changed that interpretation: now they say that this exlclusion means that e.g. computer programs not as such are patentable. Now what is a computer program not as such? A computer program executed by a computer, and to make it absolutely clear those are patentable, they call those "computer-implemented inventions" nowadays.

There's no "European" patent office

Each country within the EU has its own separate patent office, and its own separate patent laws.

Note however that the EPO is not an EU body, it lives completely outside the EU (there are countries who signed the EPC and which thus recognise the EPO, but which are not in the EU).

Some countries permit the patenting of software patents, some currently do not.

However, when you want to enforce a patent, you have to do so before a national court in the country where you want to enforce it. When you look at this, only in the UK software patents have been successfully enforced in the general case. In The Netherlands for example, no-one has ever even tried to enforce a software patent. In Germany, software patents have been generally unenforceable until now.

Even if (when) the EU patent directive is introduced there still will not be a "European" patent office, or even a Europe-wide agreement as to what is and is not patentable.

As you may have seen, article 52 EPC excludes computer programs, mathematical methods and business methods from being an invention (and thus from patentability). The catch is article 52(3), which states that those exclusions only pertain to the subject matter "as such". What this used to mean, is that you could never get a patent on something where the only contribution lied in one of those things (maths etc), but that otoh an patentable invention which also contains a computer program, does not suddenly become unpatentable

Since the EPO wanted to start granting software patents (their advisory board consists of corporate lawyers from IBM, Nokia etc, and they make money per granted patent), they changed that interpretation: now they say that this exlclusion means that e.g. computer programs not as such are patentable. Now what is a computer program not as such? A computer program executed by a computer, and to make it absolutely clear those are patentable, they call those "computer-implemented inventions" nowadays.

http://swpat.ffii.org/log/intro/index.en.html

Software Patents in Europe: A Short Overview

A patent is a right to monopolize an invention. A would-be inventor specifies a scope of activities from which he wants to exclude others (the claims), and submits it to the Patent Office, which evaluates whether these claims depict an invention within the sense of the law and whether the invention is correctly disclosed and industrially applicable (formal examination). Some patent offices will moreover examine whether the invention is new and non-obvious (substantive examination). If the application passes the examination hurdles, the Patent Office grants the applicant exclusive rights to produce and market the invention for a period of 20 years.

Programming is similar to writing symphonies. When a programmer writes software, he weaves together thousands of ideas (algorithms or calculation rules) into a copyrighted work. Usually some of the ideas in the programmer's work will be new and non-obvious according to the (inherently low) standards of the patent system. When many such ideas are patented, it becomes impossible to write software without infringing on patents. Software authors are thereby deprived of their copyright; they live under permanent threat of being blackmailed by holders of large patent portfolios. As a result, less software is written and fewer new ideas appear.

The core patent law in Europe is the European Patent Convention (EPC) of 1973. In Article 52, the Convention states that discoveries, scientific theories, mathematical methods, rules, methods of thought, business methods, and computer programs are not inventions in the sense of patent law. There is a reason for that: in the legal tradition patents have been for concrete applications of natural science ("technical inventions"), whereas patents on software cover abstract ideas. When patents are applied to software, the result is such that instead of patenting a specific mousetrap, you patent any "means of trapping mammals" (or, for an actual example, any "means of trapping data in an emulated environment").

In 1986 the European Patent Office (EPO) started granting patents on computer programs in violation of the EPC , allowing claims on software distinguished only by the use of the following phrasing:

"1. process for using a computer, characterised by ..."

Unchecked in this practice, in 1998 they began granting claims that literally contradicted the law , allowing patents on software for claims that used the following phrasing:

"2. computer program, characterised by that [with its help a process according to claim 1 can be executed]."

The number of patents on software that the EPO has granted in this manner is estimated at more than 30,000, and this practice has been increasing at a rate of 3,000 per year.

Most of these patents are broad and trivial and not significantly different from corresponding types of patents that the US and Japan have been allowing.

Given the damaging effects of these kinds of patents, not to mention their illegality, one might expect the EPO would be subject to pressure to bring its practice in acc

Article 52(1) and (2) of the European Patent Convention:

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(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;

(d) presentations of information.

The mathematical methods and programs for computers parts both rule out patenting of computer algorithms. The European Patent Office may have granted many patents for these things (in violation of the Convention) but that doesn't mean that they would be enforceable in court.

The relevant difference between the EU and US that everyone is getting worked up about is that the US permits patents on software whereas much of Europe still recognizes that software is a feild of math and that patents on math are invalid.

The Europoean Patent office has issued several thousands patents on software, but they have been having trouble in the courts.

The European Patent Convention article 52 section 2 says:

(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;
(d) presentations of information.

So the several thousand patents on software have appantly been granted illegally and are apparently invalid.

The legal shenanigans mainly come down to the last two words of section 3:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

You cannot patent software "as such". So there are word games going on to try to claim a pure software "invention" as a process implemented on an ordinary computer.

The other game is for the patent description to be evaluated "as a whole". What does that mean? To get a patent you need to pass three tests. Your claimed invention must be new. Your claimed invention must be non-obvious. And your claimed invention must be patentable subject matter. Assuming they describe new software and non-obvious software (non-patentable subject matter), and mention a plain old paperclip (patentable subject matter), then "as a whole" all three qualifications have been met. "As a whole" means that you can't seperately dissmiss the paperclip as ordinary and dismiss the software as invalid subject matter.

The hooplah is that the US and large corporations and patent lawyers have been exerting tremendous pressure to get an EU directive passed ordering that software patents will be valid. The EU Council is pushing to validate software patents.

However the EU's own investigation found 94% opposition to software patents, including nearly all programmers and small/medium bussinesses. Those filing the report on that investigation then had the gall to claim they found and "Economic Majority" in support of software patents. The 6% in favor included Microsoft and other BigBusiness. 6% magically becomes "majority support".

A huge groundswell of public opposition to software patents convinced the EU Parliment to approve a directive upholding the rule that math and software are not "inventions" and thus not patentable.

The proposed Directive in now bouncing back and forth between Parliment and the Council, with the Council revising it as a "compromise" that is even more radically pro-software patents, to the point that it would be a violation to publish a description the claimed invention.

There are certainly issues with dating patents and with submarine patents, but that is small potatoes compared to the issue of whether software can be patented at all.

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"Harmonizing" EU law to allow softwarepatents is like harmonizing american law to allow death penalty. It isn't preserving the status quo, because there is no status quo.

The draft, now even broader, is based on the praxis of the European Patent Office. This differs from the praxis of other countries. (Or there'd be no need for a harmonization, would there?)

(The non-EPO praxis is based on the following quote actually meaning that programs for computers not shall be regarded as inventions. "The following in particular shall not be regarded as inventions [...] programs for computers;")

The problem isn't that software industry will die, because it wont. The problem is that large companies get a "go to jail without passing GO"-card, for use against small innovative competitors.

It should be obvious, but that is not good for economy and society, and particularly bad for Europe when 70% of those 30,000 cards are non-european.

Ah yes, the old "patents are too expensive to file" argument, complete hogwash.

As far as enforcement, they wouldn't have to actively enforce their patents, they could use them strictly as defensive patents.

Then we just have to hammer harder. The amended text passed by the European Parliament in its first reading was a staggering success for the anti-software patent lobby: it explicitly ruled out the possiblity of patenting software per se.

If we can convince the parliament to stand firm, the worst that can happen will be that the European Commission drop the directive, the situation will remain confused at the national level, and we will have to rely on the courts correctly interpreting article 52 of the European Patent Convention in any dispute about the legality of such patents; the best that can happen is that the directive gets put into law with an explicit statement that software cannot be patented. If this happens, there is absolutely no chance that the directive would get overturned within the foreseeable future.

There is still everything to fight for.

You know, patent attorneys can also do good things with worthless software patents. And besides, it'll be a good exercise for my European Qualifying Exam.

Nope, Norway is not a contracting state. However, Turkey, Bulgaria, Czech Republic, Estonia, Hungary, Romania, Slovenia and Slovak Republic are contracting states. See this list.

In a sense this is true, but in another it is not (as with everything to do with the EU). In particular, Article 52 of the European Patent Convention says

(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;
(d) presentations of information.

The 27 memebers of the European Patent office include all 15 EU Member States. This does not of course mean that European Patents actually follow this rule.

In a sense this is true, but in another it is not (as with everything to do with the EU). In particular, Article 52 of the European Patent Convention says

(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;
(d) presentations of information.

The 27 memebers of the European Patent office include all 15 EU Member States. This does not of course mean that European Patents actually follow this rule.

So I am certain the EU will give the EPO the right to award software patents. The only way to stop this is by periodically checking what [provisional patents] applications are [awarded] published and bombard the EPO with negative comments and prior arts.

This is why applications are published and why the EPC has specific provision (Art. 115) for this. There are no fees for filing third party observations.

Reasons why Anonymous Coward is wrong:-

1. Lack of research
2. EPC provisions regarding search, publication and examination
3. EPO Guidelines for examination

Reasons why Anonymous Coward is wrong:-

1. Lack of research
2. EPC provisions regarding search, publication and examination
3. EPO Guidelines for examination

The European Patent Office and the UK Patent Office both categorically state that "An invention is not patentable if it is: ... a mathematical method ... or a computer program.

Can someone please explain just which UK patent numbers apply to LZW or even better, explain how LZW circumvented the exclusion clauses. I note that Unisys did not mention the European patent numbers in their article.

This is all making a mountain out of a molehill. The situation under the European Patent Convention, which set the patentability criteria for the EPO and the national patent systems of the EU and other European states, is currently that a technical contribution is required for a software-implemented invention to be patentable. Its just that the EPC doesn't actually use these words.

The reasoning that leads from the wording of the EPC to the requirement for a technical contribution is summarised here.

<RANT> "Software Patent" is not a useful term. Some inventions are implemented using embedded processors controlled by software, for example most aspects of mobile phones. Other inventions relate to CPU task schedulling and others relate to organising and displaying financial information. All of these involve software but are not equivalent in terms of their engineeringness. The debate about "software patents" is so much wind without some appreciation of the different sorts of invention that may involve software and the different economic considerations. Patents are about encouraging economic development by offering the hope of protection for investment and alway have been. They are not primarily about some guy in his garage.

The analysis needs to consider the economics of R&D and cost/benefit for consumers. At present, the line is draw on the boundary of "hard engineering" and excludes business methods and inventions that relate only to the way something is coded.</RANT>

Actually any computer program is equal to a pure mathematical statement. This actually has practical value because there are automated math thereom proovers. In some cases a program can be translated into a mathematical statement and the program can be proven 100% correct and bug free. Unfortuantely the technique isn't useful on large programs like an operating system, but it is a useful technique.

So any patent on software is equal to a patent on math.

Any programmer is perfectly capable of mentally "running" a program line by line. This technique is often used while debugging, to see excatly what the program is doing. Generally people only do this for small programs or small sections of code. But give time and effort absolutely any program can be run through pure thought alone.

So any patent on software is equal to a patent on thinking a sequence of thoughts.

Currently the European Patent Convention article 52 subsecion (2) (c) frobids patents on software. This is a good rule. These peopel want to CHANGE the rule and institute a US STYLE PATENT SYSTEM. Yeah, they're nixing business methods, that's good. But they are still copying the screwed-up US software patent system.

They say they aren't allowing pure software patents. Well guess what, the US doesn't allow pure software patents either. Nope, you have to state software run on a general purpose computer and POOF! It's patentable! Fscking idiots.

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The EU really does need a universal intellectual property regulation system.

First of all, saying a universal (or harmonized) system is a good thing is NOT an argument for any particular implementation of that system.

Secondly, patents and copyrights are patents and copyrights. They have VERY different properties than physical objects, and they have very different rules controlling them. Copyrights are patents are valid and useful, but they aren't property.

What we needed are universal ... a much narrower definition of what can be patented in software.

I agree if you take the limit of defining "narrower" to be zero. Applying patents to software is a Bad Idea. The European Patent Convention currently forbids software patents in article 52, paragraph 2, part (C). She is advocating CHANGING the rules.

The US f*cked up when it eliminated it's rules against patenting software. It's great when countries copy the good things about the US, but why the hell does the world have to copy us when we screw-up?!?

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She actually makes it clear in the article that she doesn't want a US system.

She ceritainly said she wants to stop the "drift towards US patent models". However I'd love to see you explain how her software patent system is different from the US software patent system.

Currently the European Patent Convention forbids software patents in article 52, paragraph 2, part (C). She wants to stop the "drift" to a US style system by implementing a US style system in one fell swoop.

Maybe - as someone else proposed here - open-source should be excempted from patents.

Either software patented are valid or they aren't. Asking for an exemption for open sourse just makes open source advocates look like whiney idiots who don't want to have to obey the same laws as everyone else. Either software patents are a bad idea or they arent. Suggesting an exemption for open source just casts suspicion on the argument that software patents are bad idea.

Any software can be "run" by a human brain just by thinking through the steps. It's absurd to patent a sequence of thoughts.

Any program can be rephrased as mathematical formula. It is absurd to patent math. As a matter of fact programs are sometimes rephrased as a math functions so that they can go through a mathematical theorem prover, to prove that a program is correct and bug-free.

"... non sequitur, solecism and faux-naivete ..." gDict only knew 1.5 of those words, but I'm assuming it's a fancy way of saying anyone being pro software patents are morons.

I think it was targeted at her and her words specificly. It's one thing to have a different position and use valid arguments and valid argument techniques, it's something else to dissagree and to use invalid argument techniques and deception.

I agree that was one hell of a string of words. It's ok to use rare words, but it's usually a bad idea to string togther a whole pile of rare words.

Non sequitur: Something which does not logically follow. A conclusion that has no rational connection to the previous statement. For example she argues that the EU should harmonize its patent laws. That is a good and logical statement. Her next statement is a conclusion that the EU should therefore have every member nation adopt software patents. That is a non sequitor. The fact that the rules should be the same says nothing about what the rules should be. As a matter of fact european patent laws currently forbid software patents almost universally. If anything EU harmonization should indicate a complete ban on them.

Solecism: I had to look this one up myself. It is a grammatical error or an impolite phrasing. I'm going to go on a limb and guess he was reffering to "It is time some of the 'computer rights campaigners' got real" and "one section of the software industry who seeks to impose its business model on the rest of industry".

Faux-naivete: Faux = fake, naivete = innocence or ignorance. For example she says "Software as such cannot be patented", yet she knows damn well that is exactly what she is advocating - she says "Patents for software inventions will not go away". She intentionally introduced amendments that claim to forbid software patents with the full knowlegde that they do no such thing. It's true you can't patent "pure software", but the instant you add the words "run on computer hardware" it becomes patentable. She also says "this directive will not have any adverse effects on open source software development" when it will blatantly strangle open source. People have clearly informed her of that fact. She knows the statement is false, saying it anyway is to pretend ignorance (faux-naivete) of the fact.

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According to the European Patent Convention (1973), "computer programs ... as such" were to be specifically excluded from patentability. However, according to the latest EPO guidelines software innovations are now patentable, if they have a 'technical character', beyond just being run on a computer:

A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in processing data which represent physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link.

Just about any kind of software design or process is therefore now apparently deemed patentable by the EPO, if it can be defended as having any kind of rational justification or identifiable practical usefulness. (Note that the exact nature of "technical character" is never defined. Apparently it's something you just know when you see it.)

The width of EPO patentability is borne out by considering a selection of some of the patents that the EPO has granted in recent years:

http://swpat.ffii.org/patents/txt/ep/index.en.html #pubjar

So, when in the letter Mr Taylor calls on MEPs to support the McCarthy draft proposals, because they "confirm the current scope of patentability" and would be "integrating the long-standing approach of the European Patent Office", this is effectively a call to confirm almost unlimited software patentability.

According to the European Patent Office, it comes to about EUR 29800, or over US$ 32700. I'd better start saving.

Yes, the European Patent Office does not exist. Go away now!

I read on the EPO site that "Within nine months of the date of grant, any third party may file opposition against a patent they believe does not comply with the substantive provisions of the EPC.". This is great, but I'd like to know more about how the public can become aware of the pending patents? Is there a website where people can search for them, or is there a sheet of paper pinned to a corkboard somewhere in Munich? It strikes me that wider circulation of this list would do the public and the reputation of the Patent Office a great deal of good.

Here is the feeling from the outside.

Software patents are a complex subject in Europe. The law itself is clear (Art 52):

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;

But the law makers didn't want to rule out everything that use an algorithm. Just the thing that were only algorithms. So, they added (Art 52):

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

But the industrial lobby used this "as such" clause to brings back software patent by the backdoor. First by saying that the "as such" clause is too complicated to really understand what it means, and then by providing their view of it: a computer program that have a "further technical effect" is not a program as such. For example, in the EPO examinator's guideline, it is written:

While "programs for computers" are included among the items listed in Art. 52(2), if the claimed subject-matter has a technical character, it is not excluded from patentability by the provisions of Art. 52(2) and (3).

But the guideline go further:

In the practice of examining computer-implemented inventions, however, it may be more appropriate for the examiner to proceed directly to the questions of novelty and inventive step, without considering beforehand the question of technical character. In assessing whether there is an inventive step, the examiner must establish an objective technical problem which has been overcome (see IV, 9.5). The solution of that problem constitutes the invention's technical contribution to the art. The presence of such a technical contribution establishes that the claimed subject-matter has a technical character and therefore is indeed an invention within the meaning of Art. 52(1).

But the EPO have no juridictional power. That's why, when there is patent litigation, it goes in front of a national court. But EPO could not impose its views on national court. So, in every european software patent case, the court has found the software patent illegal.

So, in order to have the Europe comply to its views, the industrial lobby, and especially our friends of the BSA, has lobbyed the European Commission to propose a new law to make software patent lawfull. My prefered line from the FAQ is about the answers they have got from a consultation he subject, and the respect they have for those answers (my emphasis):

Many of the responses supporting a more restrictive approach than at present, with fewer patents being granted, were transmitted through an open forum set up by the "Eurolinux Alliance", a group of companies and other entities supporting the development of open source software such as Linux. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper.

Fortunately, our gouvernment is still opposed to the idea. But how long could it stand against Europe or industrial lobbies ?

So, from outside, the feeling is that the EPO is defying the law, on the pressure of the industrial lobby. And in order to align the law to their views, they even lobby the European Commission.

And you ? What is your feeling about this ? Especially from the inside of the EPO. You are somehow in the center of the whole thing. I would really like to have an opinion "from the inside".

Here is the feeling from the outside.

Software patents are a complex subject in Europe. The law itself is clear (Art 52):

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;

But the law makers didn't want to rule out everything that use an algorithm. Just the thing that were only algorithms. So, they added (Art 52):

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

But the industrial lobby used this "as such" clause to brings back software patent by the backdoor. First by saying that the "as such" clause is too complicated to really understand what it means, and then by providing their view of it: a computer program that have a "further technical effect" is not a program as such. For example, in the EPO examinator's guideline, it is written:

While "programs for computers" are included among the items listed in Art. 52(2), if the claimed subject-matter has a technical character, it is not excluded from patentability by the provisions of Art. 52(2) and (3).

But the guideline go further:

In the practice of examining computer-implemented inventions, however, it may be more appropriate for the examiner to proceed directly to the questions of novelty and inventive step, without considering beforehand the question of technical character. In assessing whether there is an inventive step, the examiner must establish an objective technical problem which has been overcome (see IV, 9.5). The solution of that problem constitutes the invention's technical contribution to the art. The presence of such a technical contribution establishes that the claimed subject-matter has a technical character and therefore is indeed an invention within the meaning of Art. 52(1).

But the EPO have no juridictional power. That's why, when there is patent litigation, it goes in front of a national court. But EPO could not impose its views on national court. So, in every european software patent case, the court has found the software patent illegal.

So, in order to have the Europe comply to its views, the industrial lobby, and especially our friends of the BSA, has lobbyed the European Commission to propose a new law to make software patent lawfull. My prefered line from the FAQ is about the answers they have got from a consultation he subject, and the respect they have for those answers (my emphasis):

Many of the responses supporting a more restrictive approach than at present, with fewer patents being granted, were transmitted through an open forum set up by the "Eurolinux Alliance", a group of companies and other entities supporting the development of open source software such as Linux. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper.

Fortunately, our gouvernment is still opposed to the idea. But how long could it stand against Europe or industrial lobbies ?

So, from outside, the feeling is that the EPO is defying the law, on the pressure of the industrial lobby. And in order to align the law to their views, they even lobby the European Commission.

And you ? What is your feeling about this ? Especially from the inside of the EPO. You are somehow in the center of the whole thing. I would really like to have an opinion "from the inside".

Sotfware patent are not legal (yet ?) in Europe. Yes, EPO can give you a patent for a "computer-implemented" invention, proven that there is a "further technical effect" (whatever this means, if it is really much simpler than "as such". See the FFII web site for discussion about it). But for now, every times a software patent has been brought in front of a (national) court, it has been judged as illegal (decisions are here). So, yes, EPO grants software patent, but no, they are not legal in front of a national court.

So, we, european developer, could develop open-source project without caring about software patent. At least until we put the executable on the web. You can be judged as infringing a software patent if you distribute an executable. And severals judgment have set that "putting on the web" is like "distributing for the world". Finally, the Sklyarov stuff have shown that if you are found guilty of something in the us that is still absolutely legal in your country, it's not a good idea to go to the US. So, for now, the solution is to put a kind of message on the web page, like "sorry, if you are in the US, you don't have the right to download the software".

Fine. But in fact, in front of a court, this could be judged as not enought. A court could ask you to put a real filtering on your web page (see the Yahoo stuff). But if the filtering itself is patented in US ? Do we have to put a pre-filtering for US citizen ? Or does this means that wherever you are, if you put something on your web page, then you are bound by the US patent laws, even if you have different laws in your country ? At least the Yahoo case required only the filtering for French citizen...

Heh, we have a whole book, called the "guidelines" it's a public publication which you can download from our website (convention, guidelines). Essentially, a novelty destroying document is one which discloses all the features of a claim (or invention) in a single embodiment or example. This can be another patent or any prior publication from anywhere - as long it was public knowledge at some point ;) Usually we have to challenge inventive step - in this we argue that something isn't inventive because someone skilled in the art (but with no inventive ability) WOULD combine the knowledge of two different documents to arrive at the concept. I know its dry and boring (as are all legal texts) but iy you get a chance, our guidelines and the European Patent Convention do have some info ;) Personally I feel a little cheated if (and this is rare) I don't find a set of prejudicial documents during a search ;) Then I don't work in computing and crap like that....... Troc

Heh, we have a whole book, called the "guidelines" it's a public publication which you can download from our website (convention, guidelines). Essentially, a novelty destroying document is one which discloses all the features of a claim (or invention) in a single embodiment or example. This can be another patent or any prior publication from anywhere - as long it was public knowledge at some point ;) Usually we have to challenge inventive step - in this we argue that something isn't inventive because someone skilled in the art (but with no inventive ability) WOULD combine the knowledge of two different documents to arrive at the concept. I know its dry and boring (as are all legal texts) but iy you get a chance, our guidelines and the European Patent Convention do have some info ;) Personally I feel a little cheated if (and this is rare) I don't find a set of prejudicial documents during a search ;) Then I don't work in computing and crap like that....... Troc

• Patents must be held by individuals, not corporate entities

  
  

  The ecomonics of building factories means that corporations are going to want to have the exclusive benefit of a patent, even if they do not own it as such. What would happen if an engineer changed jobs, would the patent rights go with the engineer and, if so, why would anyone pay engineers to invent?

• Only physical objects and processes may be patented.
• (Corrolary) No patent shall be granted for algorithms or business processes
  
  

• Naturally occuring results of processes may not be patented (ex: DNA)

  
  

  You are in the mainstream with these. The US is pretty much out on its own in the degree to which it allows patents for these. See for example Art. 52 European Patent Office and this mauling of Dell by the UK Patent Office.

• A working implementation of the patented process must be provided (upon request of USPTO)

  
  

  Not really possible if the patent application is for a nuclear power station. However, part of the patent deal is that the description is sufficient to teach other skilled people how to work the invention. If the Examiner is suspicious he should raise an objection on this ground but there may be other ways of proving the invention, e.g. using computer models.

• The USPTO must conduct a good faith search for any prior art

  
  

  I think that this is a little hard on the USPTO, which is pretty robust in its searches compared with some other patent offices. If there is a quality issue, it will be down to resources and individual staff competency rather than bad faith.

You're being a little parochial, the original issue was the improvement of the system. I pointed out that publication of applications went some way to providing the public review. It is irrelevant how the US currently deals with this issue. The point is that there are models which provide an improvement and, although not perfect because of the AIPA exclusion, even the US is moving the the right direction.

It has always been possible to put prior art before the USPTO, although difficult to identify the case to which it relates, and the examiner is bound by a public policy requirement not to knowingly grant bad patents to take relevant prior art into account if it comes to his attention.

With a few thousands illegal patents delivered by europe software patent factory, it would be fun to count how many patents this government sponsored software infringes :). Hopefully some German politicians clearly said no to patents. After France, there's hope to get a software patents free Europe if Germany officials say no too.

The Board of Appeals of the EPO reasoned that the things in the list of 52(2) have in common that, when considered as such, they are not of a technological nature. And because it says "in particular", it must follow that an invention, to be patentable, must be within the technological arts. The 'as such' stresses this: a computer program as such is a mere algorithm or abstract thing, but a computer driven by a program is a technological thing and so not excluded because of the 'as such'.

So, basically, the exclusion paragraph of 52(2) and (3) does not exclude anything that wasn't excluded already anyway. It's just a way of stressing the fact that an invention should be technical by enumerating things that clearly are not technical. This is one of the reasons that the EPO tried to get this part of article 52 removed completely back in 2000.

I don't know why the EPC didn't say from the start "An invention shall be of a technical nature". Apparently they thought this was self-evident, and just gave a list of potential borderline cases to be safe.

I visited the European Patent Office (a.k.a Barad-dûr) in the Hauge,
and I must say that nowadays they certainly take patents seriously!

If we are to have software patents then the new guidelines are out of order, because there is no requirement to do anything other than describe the functionality being patented.

It should be noted that the EPO is in Munich where Microsoft have a major office.

In any case these are only the guidelines for new patent examiners. The law isn't passed yet.

"Europe" won't be doing anything in a hurry: the responsibility lies with the EPO which has its own legislative and executive bodies, not the EU, even though it is some people in the EU Commission which are giving us some concern. Patents are governed by international treaties, and remember it takes decades to change treaties. The WTO's agenda is set years in advance and software patents are very low on the priority list. For the current proposals see the report "Does the TRIPS Agreement require all member's rules on protection of intellectual property to be identical?" for an explanation.

The UK response to a recent initiative to re-look at software patents was firmly negative, and there is a Europe-wide campaigning body to ensure that it doesn't happen "by accident".

Patent Information Users Group

IP Australia

US Patent & Trademark Office (UPSTO)

European Patent Office

for a few

It has to be said, the English patent office is usually reasonably sensible - but then again, I imagine the number of entirely daft patents that must engulf the US office is probably greater than the total number of UK applications!

Hopefully we'll also be able to exert some influence in the EU; unless of course something terrible happens at the election in May... :-/

Having said that, this doesn't look too encouraging on the EPO front. Let's hope the UK's decisive action will spread common sense around the continent.

Here are some more I found...

Integrated Auction for remote online bidders and live participants at an auction site
Information presentation and management in an online trading environment

I got this from the website of the European Patent Office

cheers
mike

The important rubric, from this document, runs:

17. Article 52 shall be amended to read as follows:
Article 52 - Patentable inventions
(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:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business;
(d) presentations of information.

The whole schebang has to do with "European countries' collective political determination to establish a uniform patent system in Europe." Note, though, that from trawling through Europa earlier today, I get the impression that the final aim - a European Patent - has not yet been reached. So for now, member states signed up to EPO, it may be assumed, will amend their national legislation to match the EPO resolution.