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"The whole of Europe uses a unified system that permits such patents but forces them to jump through rigorous test to cut the crap that is patented in the US and that clogs up the US patenting system and cause endless costs and angst in the software community... See for a brilliant simple description : http://www.iusmentis.com/patents/software/epc/"

Unfortunately the Ius mentis description is dated and misleading anyway:

http://webshop.ffii.org/
http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf

Except you can still patent after you publish. You have 1 year in the US, and I believe that rule applies to the EU as well. It's actually better to publish ASAP so that you establish your claim before anyone else.

No, that is not correct for the EU. Article 54 of the European Patent Convention says this:

1. An invention shall be considered to be new if it does not form part of the state of the art.
2. The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

(There are three more articles, but I don't think they are relevant for this discussion)

If the inventor published before applying for a patent he has raised the bar for a patent and the same work can no longer be patented. If I understand right, the US patent law is also heading into that direction.

Canonical is registered in the tax haven Isle of Man and employs staff around the world, along with their main offices in London and support office in Montreal. Isle of Mann is not part of the United Kingdom, but external relations, defence, and ultimate good-governance of the Isle of Man are the responsibility of the government of the UK. So no it's not UK based and it has a global reach; So laws around the world impact upon it. That includes but is not limited to UK, Canadian, Usa, Chinesse, Polish, Liechtenstein and Monaco laws.

Every nation has bad laws, welcome to planet Earth. It is interesting that you are so blase; people accuse usian of being ethnocentric jingoistic, however it seems that's a more universal trait;-) Thanks for demonstrating that.

I'm more of a fan of ogg speex and ogg vorbis than mp3 . I think I finaly added a repo that had the mp3 codec after a long time. I might be liable for a civil tort, *shrug* oh well. I won't go with fluendo no matter what.

Happily as far as I know only 3 countries allowed patents on software: US, Japan, and Australia. EU which UK is part of allows patents for "Technical contributions" that might include software. Actually from the two recent Supreme Court rulings, the UK and USA might now be on even par concerning the patentability of software; so wipe that smirk from your face.

As for end-users being liable, in the usa I am fairly certain that they are. It been that way since 1903 at least. As for software being patentable -- from 1981 to 2007 pure software was patentable in the usa. Whether end-user in the uk are liable look at EUROPEAN PATENT CONVENTION and UK Acts, Rules and Directions and the case law. I have a gut feeling it would be similar to the usa in that regards though.

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 European Patent Convention (EPC), Article 52, paragraph 2
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
...
(a) discoveries, scientific theories and mathematical methods;
...
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;"

That covers algorithms specifically and software in general. SW patents are neither valid nor enforceable in the EU. That is the existing practice. The CII was / is an attempt to change all that and to introduce sw patents to Europe.

Harmonize that.

The treaty is not an EU treaty. It is a multilateral treaty signed by all EU member states, and some european states outside the EU.

All signatories to the treaty have harmonized their patent laws to the treaty. While the treaty itself only have legal effect on the signing states, the local patent laws can be enforced in court.

Article 52.2 in the treaty clearly states that software as such cannot be patented.

To extend their business the European Patent Office (EPO) has reinterpreted this several times, and their current interpretation can be simplified as: "It the software works it is not software as such, and can thus be patented."

Last year their turnover from patent fees was over 982 million Euro. But that is only the fees to be paid to EPO. Fees has to be paid to the local patent offices of all of the states where the patent is to be effective. In total, just the cost of maintaining the patent system in Europe is probably over 20 billion Euro.

The treaty is not an EU treaty. It is a multilateral treaty signed by all EU member states, and some european states outside the EU.

All signatories to the treaty have harmonized their patent laws to the treaty. While the treaty itself only have legal effect on the signing states, the local patent laws can be enforced in court.

Article 52.2 in the treaty clearly states that software as such cannot be patented.

To extend their business the European Patent Office (EPO) has reinterpreted this several times, and their current interpretation can be simplified as: "It the software works it is not software as such, and can thus be patented."

Last year their turnover from patent fees was over 982 million Euro. But that is only the fees to be paid to EPO. Fees has to be paid to the local patent offices of all of the states where the patent is to be effective. In total, just the cost of maintaining the patent system in Europe is probably over 20 billion Euro.

The treaty is not an EU treaty. It is a multilateral treaty signed by all EU member states, and some european states outside the EU.

All signatories to the treaty have harmonized their patent laws to the treaty. While the treaty itself only have legal effect on the signing states, the local patent laws can be enforced in court.

Article 52.2 in the treaty clearly states that software as such cannot be patented.

To extend their business the European Patent Office (EPO) has reinterpreted this several times, and their current interpretation can be simplified as: "It the software works it is not software as such, and can thus be patented."

Last year their turnover from patent fees was over 982 million Euro. But that is only the fees to be paid to EPO. Fees has to be paid to the local patent offices of all of the states where the patent is to be effective. In total, just the cost of maintaining the patent system in Europe is probably over 20 billion Euro.

What I said here was of course a bit simplified. The exact rules can be found in the Protocol On Privileges and Immunities of the European Patent Organization.

What you say is in Article 1.

If you look at article 3, you will see what I mean. It is limited to official activities. For some strange reason there is an exception for civil damages after traffic accidents.

The current European Parliament members have learned what soft patents mean, and know their consequences.

Hence these guys are going to crawl back under their rock and try to make themselves forgotten until after the next elections.

That'd be my take on it, too.

Alternately it's just a PR move to get everyone to drop their guard so that the pro-sw crowd (aka MS) can try fast tracking it through some agriculture and fisheries committee or other unexpected venue. It'd be a clever trick to get suckered in to giving up just as we're about to finalize the victory. So, if it's the pro-swpatent crowd saying the debate is over, I'd recommend extreme caution.

It'd be very unwise to consider the debate over until even the very possibility of sw patents has a wooden stake in it and is buried upside down at a Crossroads with garlic and holy wafers in its mouth. One way to do it would be a re-affirmation of the 1974 European Patent Convention which, in Article 52, explicitly excludes "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers".

Currently there are parts of Europe which, rather than follow EU law, style themselves as a 51st state and take after US law instead. That occurs in spite of being member states in the EU and not in the US. Sweden, for example, is one which has a patent office promoting software patents. For that matter the European Patent Office is still granting (invalid) patents on software. Until these and the others actually start following EU law by refusing further patents on software and annulling any previously granted software patents, the danger is not reduced. If anything, complacency increases the risk.

II. UTILITY

A rejection on the ground of lack of utility includes the more specific grounds of inoperativeness, involving perpetual motion.

A working model, or other physical exhibit, may be required by the Office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices.

Check out article 52 in the European Patent Convention.

It basically says that business methods and software is not patentable "as such".

When the European Patent Office released their first guidelines on how the European Patent Convention was to be interpreted, the guidelines simply stated that software cannot be patented.

Later the European Patent Office has changed their guidelines to say something that can be condensed to something like: "If software does something useful, it is not software "as such", and can thus be patented". This change in their guidelines was done by the European Patent Office with no political discussion or control, and without any change in patent laws or the European Patent Convention.

Then, the European Patent Office started issuing software patents. There are now tens of thousands of software patents issued by the European Patent Office. These software patents are illegal according the the European Patent Convention and the local patent laws of the signatories.

Then, the European Patent Office called for a diplomatic conference to get article 52 in the European Patent Convention changed to make the illegal software patents legalized. This request was denied at the diplomatic conference.

Then, the European Patent Office called for another diplomatic conference with the same request. Their request was denied again.

Then, the European Patent Office started lobbying the European Union for a directive that would force the EU member countries to change their laws to legalize the illegal software patents. A bit strange, since the EU has noting to do with patents (it is under the European Patent Convention, administered by the European Patent Office, which are completely separate). The directive was blocked by the only democratically elected body in the EU (the European Parliament).

So right now there are a lot of patents on software and business methods in Europe. But they are illegal, so they cannot currently be enforced. If somebody tries to enforce a software patent the judge would invalidate the patent, for not being patentable subject matter.

The latest development is that the European Patent Office is now lobbying the EU to get a special patent court that should be over all other european patent courts. The judges here are to come from the European Patent Office. This way they can ensure that their perverted legal theory (software is not software "as such" if it does something useful) becomes the opinion of the highest court instance for patent cases.

>The question is, how will this "intellectual property" be protected?

Some facts: It's a patent, patents deal with industrial production of mainly physical items, but see sidenote.
Patents are granted country for country, not for the world. A patent may not granted
even if applied for (see sidenote).
To achieve a patent it must generally be a novelty, "old news" is generally not patentable.
Patents provide timelimited protection (20 years)

Hence, the pre 1999 (time of alleged patent) design AK-47 assault rifle cannot be protected by a valid patent (assuming patent laws as used in Europe and US).

The post 1999 design, as described in the 1999 alleged patent - can be protected by the justice system only in countries in which the patent is granted after an application.

>Will international sanctions be enforced upon any nation that does not follow suit?
Hardly likely, either you have a case - or you don't.

Sidenote:
Patent systems differs in the world, e.g. in Europe (EU) - software patents are not accepted. See European Patent Convention (EPC) article 52, 2c . This is not likely to change soon.

Lighten up. (...) I think its safe to assume the claims in their patent applications will not be for "an idea." More than likely, their claims will recite a method of treating cancer.

The onus is on you since you want to change the status quo. The status quo you speak of has not been the status quo for long.

This thread is about patents in general. You never limited your criticisms to software patents.

Europe has never allowed it, tho some are lobbying hard to change the status quo there.

Wrong. Various member states have accepted software patents as early as the 60s (Switzerland, Belgium, France, Austria, Netherlands, etc)--before the US. The EU has not had a uniform law permitting as wide an array of software patents as we do in the US, but many of the member states have allowed software patents (e.g., UK). Furthermore, the European parliment has in-fact allowed "computer-implemented" inventions for some time and they have accepted tens of thousands of such patents. The essential and simplified difference is that it usually does not allow pure algorithms to be patented unless they are tied to some kind of real-world application (esp. devices). Many, if not most, US software patents can be granted under this rule.

Btw, you should also note that mp3 was patented in Germany in 1989.

And just look at history. Patents are relatively recent. There's plenty of innovation by civilizations that never had any concept of intellectual property. For instance the Roman Empire borrowed greatly from Greek civilization, as well as came up with plenty on their own. In engineering, Rome was considered quite advanced.

The concept of free speech and religious freedom is relatively recent too and, hey, you know the French and others managed to overthrow their monarchs despite it... so everything was fine, right? I'm not denying that the Romans, the Greeks, and others did some mighty impressive things, but these innovations were accomplished over many many years. As a rate of innovation it was truly not that impressive. They did not have a large percentage of their people devoted to R&D, most of them weren't even literate,... of course they weretotally pre-industrial, pre-Guttenburg, etc so the comparison is silly in the first place.

And the experiment has been a resounding failure.

Resounding eh? Then where is your proof? Give me at least a well reasoned argument.

Eisenhower warned against the "military industrial complex", now we have a blood sucking lawyer driven intellectual property industry.

The same claim could be made for anti-discrimination laws and tort law. While I would agree that there are blatant and very real abuses of the law, I would also say that no law worth keeping brings just good things. Abuses and hassles are inevitable.

You don't think all those ridiculous EULAs just grow on trees, do you?

I don't stay up all night long worrying about EULAs. Their power, however, can be and generally is derived exclusively from copyrights, not patents by and large, and copyrights have been around for hundreds of years.

A company without a patent portfolio is like an unarmed civilian in a war zone.

There is some truth to this (for companies of a certain size in certain industries), but like I said, no law is entirely good. As much as I hate having to worry about litigous companies, I would hate more to lose the ability to file reasonable patents. What's more, many of these problems pertain to many more obvious and overly-broad patents being allowed through these days that would have been rejected a few decades before. There are largely administrative issues pertaining to the patent office and they can be fixed; an excess of bad patents is not a necessary part of the patent system (although I will say that at least 60% of the abuses slashdot and others point out

I am not very familiar with US legislation but here in Yurop courts can't create laws, they can decide only based on existing laws. So if the legislation (in this case: the European Comitee and the European Parliament, and later the national parliaments) don't create those laws, how could they decide anything?

Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"

When was the last time you saw a US software patent which was not on what software does when it's executed, but on the source or machine code? Right. IOW, there is no inherent difference between software patents and patents on "computer-implemented inventions".

(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.

(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.

Software is explicitely excluded from patentability by article 52-2c of the 1973 European Patent Convention, as are games and mathematics.

Therefore, there are no software patents in any of the member countries.

Besides, the action MS takes is against EU as a whole, and not in a specific country of Europe.
I'm from EU (France) and not US, and am not aware of all subtilities of the US legal system, but it would seem logical that when a case is handled by a federal court, federal law prevails state law, right ?

Now if the European Patent Office could stop to grant software patents - against its own rules ! - that have no legal value and aren't enforceable >_< ...

Permanently block software patents: This would greatly reduce Microsoft's power to kill off competitors in the EU through litigation. It would also allow European software companies to use technology patented in the rest of the world, leading to much stronger competition.

...

Software patents are not banned in Europe, but we have people working at it and they're working well.

One thing you missed in your list of advantages, though, is that patents affect usage, not production or distribution. That makes it not a developer problem, but a problem for anyone planning to use a computer, especially to use it for earning money. Allowing the issue to be turned into a developer-only issue, or even more incorrectly an open source developer-only issue, is really playing into the hands of the pro-sw patent lobby. Such a spin encourages the majority of stakeholders, who are the ones with the most to lose anyway, to not defend their interests and to even dismiss the problem as being relevent only to a marginal group.

However, that said, if you do really want to keep use of computers possible in Europe, then you, your company or institution, your professional organizations, and union chapter need to be providing input to the Commission's public consultation on changes to EU patent law.

The consultation focuses on three major issues:

• the Community patent;
• how the current patent system in Europe could be improved;
• and possible areas for harmonisation.

The Commission's solicitation is about sw patents. Both the topics "Community patent" and "harmonization" have already been used in attempts to bring sw patents to Europe.

The middle part, "how the current patent system in Europe could be improved", in all likelihood, serves as an invitation for pro-sw patent lobbies to bring up the topic. If only their voice is heard, then the outcome of any decisions based on that input is not likely to be beneficial for Europe.

The threat is still present while the European Patent Office continues to grant patents on things otherwise not patentable in Europe.

letter to politicians?

What about this

        * http://ac.european-patent-office.org/pct_consultat ion_process/index.en.php
        * http://www.uspto.gov/web/offices/com/sol/notices/7 0fr75451.pdf
        * http://www.patent.gov.uk/about/consultations/inven tive/

Too late.

http://www.european-patent-office.org/index.en.php

This safe, naturally occurring, unmodified virus [...] an important discovery in the treatment of 2/3 of all human cancers [...] is patented [...]

http://www.uspto.gov/web/offices/pac/mpep/document s/appxl_35_U_S_C_101.htm

http://www.european-patent-office.org/legal/epc/e/ ar52.html
http://www.european-patent-office.org/legal/epc/e/ ar53.html

This safe, naturally occurring, unmodified virus [...] an important discovery in the treatment of 2/3 of all human cancers [...] is patented [...]

http://www.uspto.gov/web/offices/pac/mpep/document s/appxl_35_U_S_C_101.htm

http://www.european-patent-office.org/legal/epc/e/ ar52.html
http://www.european-patent-office.org/legal/epc/e/ ar53.html

They do have patents:
http://atomchip.com/_wsn/page2.html
Throw the numbers there into:
http://patft.uspto.gov/netahtml/srchnum.htm
The EU site is below:
http://www.european-patent-office.org/
Which lead me to here:
http://www.espacenet.com/getstarted/index.en.htm
Which is where I stop before submitting this message to slashdot.

I agree with this. All those "patents for the open-source movement" look like a way to reduce the strain so that there will never be a major crisis forcing the system to change drastically.

In Europe especially, instead of playing that insane game of the US-patent system, it is time to use our rights and implement algorithms for which the EPO granted illegal patents.

Freedom gets worn-out when you don't use it.

Cheers!

Uhm...this is Article 52 of the European Patent Convention:

http://www.european-patent-office.org/legal/epc/e/ ar52.html#A52

It states that programs for computers, thus software, is not patentable in Europe. This has been reaffirmed by the German Federal Court and very recently in the UK.

Under current legislation a great percentage of all software-related patents are likely to be rejected, meaning they're not enforcable. This is why the lobbying from corporations already stashing hundreds or more software patents was so intense.

The real problem is that the EPO is not only granting all these problems, but also denying that it is. If they would have respected the written law in the first place, the software patent case in Europe would never have been such a big deal. The EPO is not a EU institution by the way, it's an agreement of over 30 countries.

And the legal uncertainty due to the somewhat arbitrary interpretation of the EPC by the European and national patent offices is much better than certain death of European IT SMEs.

Oh well, I could go on and on and on.

Cheers,
Anonymous Coward

Again, disinformation is spread about software patents and what is allowed by the European Patent Convention.

Before saying that Article 52 of the EPC has a "ban on software patents", how about looking at the case law developed over decades related to how to interpret Article 52. On page 32 section 1.1 starts which has all the details about the patentability of computer-implemented inventions.

Quote from the case law: "The non-patentability of computer programs as such does not preclude the patenting of computer-implemented inventions."

But the law remains unchanged, and computer programs and methods of doing business are not considered patentable inventions.

Computer programmes as such. Please give Article 52(2) and 52(3) EPC a better look. As well as EPC caselaw.

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 can you explain why the phrase "as such" (which doesn't really have very much meaning at all in normal English) should be interpreted in so fundamentally different ways when it's applied to computer programs as opposed to other things that are listed in Article 52.2, like films, books, or other aesthetic creations?

The text "Why can't I patent my movie?" expands on this question. So far, I haven't recieved one single sensible answer from any patent proponent or apologist.

Can you provide one?

Well, the official rules for European patents are quite clear, especiall Article 52 2c:
( see the European Patent Convention )

You should win every lawsuit over any of the 40.000 software patents that the European Patent Office issued illegaly the last few years. That is, according to my reading of the law; I'm afraid real lawyers read something entirely different in it....

Article 52

Patentable inventions

(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.

Actually the European Patent Conventionstates in article 52:

(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;

So software patents are actually illegal in Europe. Strangely enough the European Patents Office seems to think otherwise though.

The EPO (European Patent Office) has granted patents on algorithms for years, despite the fact that they are illegal under the current European legislation. And it seems that the fight will go on there (cf. this article).

However, considering today's vote, the patent offices can not anymore claim that their interpretation of the law have a political backup.

Also, if the law was rejected, it is because a few ppl had a large bunch of amendments ready that would have "denatured" (in the view of large software companies) the adventage software patent could have given them...

see The Register article here :
"According to the Foundation for a Free Information Infrastructure, conservative MEP Klaus-Heiner Lehne is trying to establish a majority of MEPs to vote for a rejection of the Council's "Common Position", even before any amendments are discussed.

The FFII says it is no coincidence that supporters of the Common Position, like Lehne, are now calling for the directive to be dropped. It claims that parliament is close to establishing a majority of MEPs in support of the amendments tabled by Michel Rocard. The amendments would put limits on patentability, it argues, and so the directive should only be rejected if the 367 votes needed to pass the changes cannot be found."

http://www.theregister.co.uk/2005/07/05/patent_dir ective/

So in effects the cancelling of the law is not so much a victory as a move by the opponents to pospone the problem until they have a better chance of passing it under their own terms, US style....

Also I totally agree with your view on the grey area actual patents are in, but article 52 http://www.european-patent-office.org/legal/epc/e/ ar52.html of patent bureau clearly says that purely software patent are not to be, and that should be enough to cancel the existing ones....

We just need someone to enforce the existing rules....which is an other problem altogether...

The patent lobby tried to sneak in software patents through the back door, by claiming that it was only about harmonization, that the directive wouldn't change anything, etc, etc. They failed.

The issue has led to the most intensive lobbying campaign ever in Brussels (from both sides). Whatever their position on the issue "as such" may be, there is not a single member of the European Parliament who now thinks that this is "just a small technical matter that can safely be left to the patent experts to decide on".

If the patent lobby wants to continue working for the legalization of patents on software and business methods (and they will), they will have to engage in a serious debate about the benefit/harm of such patents. And since they don't really have any arguments that can stand scrutiny in daylight, they will have a very difficult time.

Sure, the FFII would have preferred a directive that reaffirmed the ban on software patents in Article 52 of the European Patent Convention, and led to greater harmonization in Europe. Alas, that didn't happen, because the patent lobby got cold feet and preferred to kill the directive rather than risk a vote in Parliament that they would probably have lost.

But at least we didn't get a bad directive that wiped out Article 52 and forced national parliaments to introduce software patents against their will. The situation now is that software patents are illegal in Europe (as they always have been according to the EPC), but that we still have a European Patent Office that needs to be reined in so that it starts to follow the law.

But the law remains unchanged, and computer programs and methods of doing business are not considered patentable inventions.

Today was a great day in the battle for a free and open information infrastructure, and for a favorable business environment in Europe for enterprises that use or produce software.

I don't think you really need to define "as such", because it is a placeholder, not a carrier of meaning. Pretending that "as such" qualifies somehow software and then trying to define which software is "as such" and which is not is falling in the pro-swpat trap. See http://swpat.ffii.org/analysis/epc52/exeg/index.en .html In other words, "as such" in art 52 EPC does not mean anything by itself, so it may be hard to attribute it a meaning with no harm.

I'm not so sure the actual main "pro-swpat" trap really is where you suspect it. The above FFII analysis correctly contrasts two approaches:

Software is not to be separated into two subsets (software as such and other software), but software is universally excluded from patentability.

(...) the Technical Board of Appeal [in Computer Program Product/IBM] says that computer programs are to be divided in the two subsets "software as such" and "other software".

However, the pro-swpat "red herring" rather seems to be the shifting of this debate from "as such" to technicity:

the Board asserts that the limitation "as such" has to be understood in the sense that computer programs as such are only computer programs without a technical character.

Now it is quite interesting to consider what the EPO president makes of this in the trilateral discussions (in the instance, on allowing even BMPs) in http://www.european-patent-office.org/tws/appendix 6.pdf:

The scheme for examining computer-implemented inventions is as follows:

(1) The claimed subject-matter, which by definition includes elements such as a computer or code which is intended to run on a computer, is presumed, prima facie, not to be excluded from patentability by Articles 52(2) and (3) EPC.

(2) The subject-matter of the claim is therefore to be examined for novelty and inventive step. This is done according to the Guidelines for Examination as currently specified. In particular, in the examination for inventive step the objective technical problem solved by the invention as claimed considered as a whole when compared with the closest prior art is to be determined. If no such objective technical problem can be determined, the claim is to be rejected on the ground that its subject-matter lacks an inventive step.

Notes:

1. This scheme makes no mention of the "further technical effect" discussed in T1173/97. There is no need to consider this concept in examination, and it is preferred not to do so for the following reasons: firstly, it is confusing to both examiners and applicants; secondly, the only apparent reason for distinguishing "technical effect" from "further technical effect" in the decision was because of the presence of "programs for computers" in the list of exclusions under Article 52(2) EPC. If, as is to be anticipated, this element is dropped from the list by the Diplomatic Conference, there will no longer be any basis for such a distinction. It is to be inferred that the BoA would have preferred to be able to say that no computer-implemented invention is excluded from patentability by the provisions of Articles 52(2) and (3) EPC.

As to the lack of need to consider "further technical effect", this assertion is based on the proposition that according to the scheme put forward no patent would be granted which should have been refused for lack of further technical effect. This is because the existence of an objective technical problem overcome is itself sufficient proof of the requisite further technical effect. Further, it is to be remarked that this scheme of examination should not lead to refusals where previously a patent would have been granted, since the requirement for an objective technical problem is long-established. The only change is an e

In fact you can read the examination guidelines of the EPO how it is done. Some scholars complain about it and the European Parliament has to correct the mess now.

Currently the EPO even takes part in many Microsoft Softwarechoice/compTIA lobbying events. The EPO is no EU body but totally independent. It will be difficult to get the system back under legislative control but the European Parliament will try. Now the Committee on Legal Affairs works on the directive.

What kind of support can YOU provide?

* US citizens may get subscribed in the us-parl mailing list. software patents are an international problem, so we have to get rid off them internationally.
* EU citizens can have a look at this list
* EU citizens shall make an appointment with their MEP
* Donate to the FFII
* Register as a supporter via aktiv.ffii.org, members unlike supporters additionally pay membership fees.

(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.

(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.

I don't see how a patent can be granted for this. Emergency services have been doing this for years, just on paper and with log books. Sure, it's good to have needed information in one convenient place, with a simple interface, but I fail to see any innovation or invention. How can one patent something that is simply logic? Can logic really be patented? I know it has been, but that doesn't mean it's not asinine.

4.6 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.

I don't see how a patent can be granted for this. Emergency services have been doing this for years, just on paper and with log books. Sure, it's good to have needed information in one convenient place, with a simple interface, but I fail to see any innovation or invention. How can one patent something that is simply logic? Can logic really be patented? I know it has been, but that doesn't mean it's not asinine.

4.6 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.

* We are not in favour of the patenting of software as in the US.

We are in favour of patenting software, but our laws won't be word-for-word identical to the US ones.

* Europe needs a uniform legal approach to stop the drifting towards extending patentability to inventions, which would not have been traditionally allowed, and to stop patentability of pure business methods, algorithms or mathematical methods.

As a diversionary tactic, we claim to want to stop patentability of "pure business methods, algorithms or mathematical methods" and "inventions, which would not have been traditionally allowed", while actually defining these things vacuously.

* Software products as such, must not be patented.

The EPO should be allowed to continue to use its twisted interpretation of "as such" in Article 52 EPC, so that what everyone without our hidden agenda calls software patents will be permitted.

* Opensource software must be allowed to flourish and the Commission must ensure that this Directive does not have any adverse effect on opensource software and small software developers.

We couldn't care less about open-source or small developers, but we say that we do to deflect criticism.

* Patents and the threat of litigation must not be used as an anti-competitive weapon to squeeze out small companies.

We will wag our fingers and say "tut tut" to patent trolls and extortionists -- in public at least.

Furthermore, the Labour Euro MPs are supporting a UK campaign for a defence fund for small companies to protect themselves from litigation abuse by dominant market players.

Aren't protection rackets a good idea? Lately I've been brushing up on my patent lobby doublespeak -- "protect themselves", geddit?

Please be assured that the Council of Ministers and the Commission cannot ignore our views as democratically elected Members of the European Parliament.

There's an outside chance that the parliament might have a hissy fit and reject the swpat directive in retaliation for the commission doing something unrelated that pisses us off. After all, a week is a long time in politics. Don't count on it, though.

Unless we get full agreement between the three institutions (Parliament, Council and Commission) on this Directive, there is no guarantee that this law will be passed.

Rejecting this law will require half of all MEPs (not just half of all MEPs present) to vote against it. Factoring in the usual apathy quota that's about as likely as simultaneous direct meteoroid strikes on Strasbourg and Brussels. However, it's not impossible.

(I wish I were just being cynical here, but really, that is what the reply you got means. How people use the "as such" code phrase in this debate is a pretty reliable indicator of what side they're on.)

Prior art submission by third parties during examination is of course nice, though one could wonder how many third parties have the resources (time, money and people) to keep up with the deluge of patent applications that is submitted and published, and to additionally spend time on finding prior art. This is definitely an extra cost of the patent system which should be factored in when evaluating its efficiency.

The "administrative challenge" as permitted in Europe does not really help. In 2001, 5.7% of all granted patents were opposed. I can't find the link currently, but I previously read (also somewhere on the European Patent Office's website) that in about 70% of opposition cases, the patent is maintained. This means only about 1.7% of granted patents is rejected using this procedure. In 2002, the opposition rate even declined to 5.4%

Depending on how the "willful infringement" clause is reformed, it may become less dangerous to search the patent database for information. Then again, this assumes that you can actually decipher those patents to get the useful information out, of course. Most people will still find scholar.google.com more useful, probably.

"Increasing harmonization across international boundaries" probably refers to "get those software patents in the EU going asap". Not Good (tm). Not sure what it has to do with a reform of the US patent system either (unless they mean they want to get rid of software patents in the US, which I somehow doubt).

When I say EPO are issuing illegal patents, I mean that they are grossly violating the text of the European Patent Convention, in particular Article 52.

The software patents that they are issuing are illegal according to the patent laws of all countries who have signed the European Patent Convention. Nonetheless these patents are made valid - but still illegal - national patents by the national patent offices without any further examination.

When I say EPO are issuing illegal patents, I mean that they are grossly violating the text of the European Patent Convention, in particular Article 52.

The software patents that they are issuing are illegal according to the patent laws of all countries who have signed the European Patent Convention. Nonetheless these patents are made valid - but still illegal - national patents by the national patent offices without any further examination.

You mean aside from the fact that the European Patent Convention explicitly says that software is not an invention?

Article 52 Patentable inventions
(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.

Link to the European Patent Convention.

what would this legislation permit that isn't already allowable in most countries?

While the European Patent Office has been handing out software patents, virtually no one ever attempts to enforce them because the courts generally throw them out. The only thing more worthless than an invalidly granted patent on a non-invention is blowing money to have an invalid patent on a non-invention officially invalidated by a court.

Certain types of software inventions...

Certain types of number inventions...
Certain types of equation inventions...
Certain types of sequence-of-thoughts inventions...

If you assume some numbers are inventions then yeah, obviously numbers should be patentable.

People who write software are software authors and they have copyright protection.
You are making the mistake of calling software an invention. Software is a detailed sequence of thoughts. A calculation. A list of rules and logic.

Patents are for new and non-obvious physical objects and physical processes. A written list of mental steps is not an invention. It does not matter is a person sits there thinking through those steps and speaking the result or if you give those written instructions to an ordinary old computer to go through those steps faster and get the exact same result. Neither case is is an invention.

A person sitting there and thinking through those exact same steps can certainly caculate a useful result, but can thought have a "technical effect"?

An equation may certainly calculate useful numbers, but can an equation be an invention?

A computer cannot implement an invention. A computer can only calculate. You can certainly invent something and connect it to a computer, but you cannot "invent" the equations for converting one set of numbers (MP3 file) into another set of numbers. That is a logic operation. A sequence of logic is not a patentable invention. It would take a long time, but the MP3 patent can be run on a human brain using pure thought. The blatantly obvious step of using a computer simply to speed up that logic does not make it a patentable invention.

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Well, that's symptomatic of the current status of Switzerland and various european organisations.

As they are member of the EPO and not of the EU, they will have to implement whatever is decided, without the possibility of being heard.

But they decided that democratically ;)))

The EU patent system is governed by a multilateral treaty called the European Patent Convention (EPC). Both EU and non-EU countries have signed and ratified EPC.

In 1973 when EPC was signed, all the countries harmonized their patent laws to conform to the text of EPC. At the same time the European Patent Office (EPO) was created as the administrative body to issue patents in Europe.

The big problem with EPO is that they are outside any political or judicial influence and can do pretty much what they want to.

EPC Article 52.2 clearly states that software "as such" is not patentable.

But over the years EPO has changed their "interpretation" of this. First to say that software is not software "as such" if loaded in a computer and having some useful effect (what they call "further technical effect"). Later to say that even software residing on a media without being loaded into a computer may not be considered software "as such". Their arguments for these "interpretations" are really convoluted, and it takes weeks of study to understand them.

This means that EPO illegally has issued a large number of software patents. Most estimates say at least 30,000. Fortunately these software patents cannot currently be enforced in court because they are illegal.

To fix the problem that the software patents cannot be enforced in court they have twice called for a diplomatic conference with the goal of changing EPC to legalize software patents. On both diplomatic conferences the request of EPO was denied.

Only after the second failed attempt by EPO to have EPC changed did EU propose a directive attempting to legalize software patents.

With a directive the EU can force the EU countries to change their national law. If that happens the illegally issued software patents can be legally enforced in court.

Well
We got The EPC (European Patent Convention to be specific: CONVENTION ON THE GRANT OF EUROPEAN PATENTS [EUROPEAN PATENT CONVENTION] of 5 October 1973 with later amendments) but it is not European Union law per se. It's intergovernmental treaty. EPO as European Patent Organization and its Administrative Body EPO (European Patent Office) are "responsible" for granting about 30k patents which covers so called software inventions.
This draft of Directive about CII was intended to standarize the law inside EU member states and (imho) going further prepare us for the internal regulation about "software patents".
Have a nice day!
Tom
www.rychlicki.net

Using USPTO statistics alone isn't really a valid way to back up your point, is it. I agree that the US does have the most patents issued, but if you move out of the domestic market the rate is much reduced.

http://www.european-patent-office.org/tws/tsr_2003 /ch3.pdf contains what appear to be more helpful statistics, putting Japan at the top of the patent table. A slight caveat on that is that the study focuses on Patents of Invention, rather than those of Industrial Design, or copyrights