EU Software Patents Directive: Comments?

Master Of Ninja writes "The EU has recently published a directive on software patents. Now the UK patent office wants comments on the draft directive, and specifically how they relate to the conclusions of a UK consultation on software patents. The patent office has set up a page detailing the work of the EU Directive and their stance on it. I also received an email today (Note -- this email below) asking for comments on this topic (which I will post here, as it is not on the website, and as it is in everyone's favourite .doc and .pdf formats).

EUROPEAN COMMISSION PROPOSAL FOR A DIRECTIVE ON THE PATENTABILITY OF COMPUTER-IMPLEMENTED INVENTIONS

In March last year the Government published its conclusions on whether patents should be granted for computer software or ways of doing business, following a consultation exercise. The central conclusion was "to reaffirm the principle that patents are for technological innovations. Software should not be patentable where there is no technological innovation, and technological innovations should not cease to be patentable merely because the innovation lies in software." But an urgent need to clarify the law was identified. Ways of doing business should remain unpatentable. The Government's conclusions are available at http://www.patent.gov.uk/about/consultations/concl usions.htm

Since then the Government has been pressing the case for action at European level, and last month the European Commission published its long-awaited proposal for a directive, available at http://europa.eu.int/comm/internal_market/en/indpr op/02-277.htm

The Patent Office invites views on how far the proposal for a directive meets the objectives set out in the Government's conclusions. In particular, we would welcome comments on:

whether the proposal is clear;
whether it deals clearly and satisfactorily with computer-implemented business methods where the inventive step is in the business method;
the treatment of the form of claim, in relation in particular to claims for programs.

We would welcome comments by Friday 7 June. These should be emailed to policy@patent.gov.uk or posted to:
Robin Webb
Room 3 B 40
The Patent Office
Concept House
Cardiff Road
Newport
NP10 8QQ

The directive, if enforced, will become "law" throughout the EU, so here's a chance to influence how software patents are enforced in an area covering hundreds of millions of people. The comments should be sent to policy@patent.gov.uk as it says in the letter. Hopefully there will be someone wanting to comment on this since the last time the UK government wanted advice on open source software, only 7 comments were put in. Flamers and trollers need not apply."

Comments

Oh dear...

[Anonymous Coward]

I wonder how many "FiRsT pOsT" comments will be received at policy@patent.gov.uk?

Won't change anything...

[koto54]

They have already been a consultation on this. Here is the answer of the commission about this consultation :

"Many of the responses supporting a more restrictive approach than at present [...]. 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."

So, even if 90% of the comment are AGAINST software patent, it doesn't seems to really trouble the commission.

So much for the democracy.

Why would it be different here ?

Re:Won't change anything...

[Donny Smith]

>So, even if 90% of the comment are AGAINST
>software patent, it doesn't seems to really
>trouble the commission.

90% of what? 90% of votes cast? A Web-linked vote from a GPL fanatic vs. a vote from a rep of a major employer/tax-payer/telco?
Get real....

>So much for the democracy.
>Why would it be different here ?
That's right, hopefully it won't.

yadda yadda yadda

[Anonymous Coward]

submitted, rejected, bah humbug

The comments...

[Master Of Ninja]

Hi!

What this commentary period is for is allowing the UK patent office to hear your views. So rather than having the EU ignore you, the hope is to get the UK government/patent office to apply pressure by proxy.

I'm a bit disappointed that more people aren't interested in this, with the longest post I've seen being a troll in German. I'm sure there are a lot of people in the UK (and the EU) who must have an interest in this. Even if you're from the USA or Canada, I would still say put a post in.

If you are reading this, make an effort to read what is going in. Remember democracy doesn't work if you don't participate, so don't start bitching later when laws you don't like are passed.

Directive is unclear

[pussyco]

I've read the draft directive and it is unclear. Imagine that a manufacturer of drilling machines invents a torque controller to reduce drill bit breakage. In the past that would have been done with slipping clutches and springs, and obviously would have been patentable. Today one does that kind of thing in software. However Article 52 of the EPC excludes:

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

Has the realm of patentability effectively been narrowed? The directive clarifies that the drilling machine manufacturer can patent his new machine and claim royalities from other drilling machine manufacturers even though the invention lies solely in the software embedded in the machine. Unfortunately the directive clarifies this area of law by confusing another. What happens when there is no drilling machine, when the invention is only a computer program? For example a data compression program that runs on a general purpose computer. The directive suggests that the general purpose computer, implicit in the notion of a computer program, counts as a machine in the way that the drilling machine did, thus extending the scope of patentability, directly contrary to 52(2)c.

Re:Directive is unclear

[Arnoud Engelfriet]

The EPC only excludes patents on software as such, not on all software-implemented inventions. The Board of Appeals of the European Patent Office has interpreted this provision to mean that you can get a patent on software if it solves some problem in technology (they call it a "technical problem"). You may want to read The patentability of software under the EPC at my website.

In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).

The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.

Re:Directive is unclear

[pussyco]

Your website says

It doesn't have to be external to the computer on which the program is run; reduced hard disk access time or an enhanced user interface could also be a technical effect.

Which implies that my second example, of a data compression program that runs on a general purpose computer, is patentable, because it has a technical effect.

This creates a serious difficulty in the interpretation of section 52(2)c. Computer programs that lack a technical effect cannot be the target of the exclusion in this section because lack of a technical effect already excludes them from patentability. Computer programs that possess a technical effect are not the target of this exclusion because possession of a technical effect exempts them from the exclusion. So what does the exclusion exclude?

Re:Directive is unclear

[Arnoud Engelfriet]

You've hit on exactly the same problem as the Boards of Appeal of the EPO did. If you look at article 52(2), you'll notice that it starts with "The following in particular shall not be regarded as inventions within the meaning of paragraph 1". It then follows with a list of things, including computer programs. Next, article 52(3) says "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." So there must be some kind of limit to this exclusion, otherwise the "only as such" phrase makes no sense.

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.

Re:Directive is unclear

[Anonymous Coward]

You did not answer the question.

"So what does the exclusion exclude?"

The EPO answer and practice says "nothing". An EPO technical problem is not about controlling natural forces, but about describing any rule of organisation as technical. To solve that problem you must be a lawyer, not an inventor.

The most inventive lawyer in EPO filing history is perhaps Fritz Teufel, IBM. He was the one that invented the difference between programs for computers and programs for computers as such.

A remarcable invention (since there is no such difference) that has led to a completly new branch of IP-technology.

This technology evolves along what in 1976 was described as "a forbidden path" and will probably soon embrace all logical functionality outside the individual human brain.

If you like that, stay in darkness. If you don't, join your brothers in VOSN or FENIT and sign the petition.

//Erik Josefsson

Re:Directive is unclear

[Arnoud Engelfriet]

You did not answer the question.
"So what does the exclusion exclude?"

You're right, I didn't. What I tried to do was explain why computer programs are not always automatically excluded. The EPC is rather unclear on this, despite FFII's claims to the contrary.

The EPC has the restriction that only "computer programs as such" are excluded. Thus, to answer the question "What is excluded?", one must address what this limitation on the exclusion means, and why it was included. Otherwise it makes no sense to state in the treaty that it is only excluded if it is a program as such. If that limitation weren't there, I would agree with you that software isn't patentable.

However, now that this peculiarity is in place, you can't just say (like the FFII article you quoted did) "According to the European Patent Convention, computer programs are not patentable." and then argue that only in the 90's did they suddenly come up with some meaningless 'as such' restriction. That's been in there since 1974, when the EPC came into force. This has to be addressed if you want to argue within the scope of the EPC whether software is patentable.

The EPO has reasoned that the exclusion is for anything that does not solve a problem in technology, and the list in 52(2) is just an illustration of things that, as such, don't solve such problems.

As far as I can tell, the FFII does not address why the "as such" restriction is there, and reasons from German law (which used to require physical causility back in the '70s) how the EPC should have been.

Re:Directive is unclear

[Anonymous Coward]

And you still don't answer.

I found a EPC parser bug in "The First Mover Monopoly" that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".

This is a bug. It should read: "These requirements mean that not all ideas are inventions".

A scientific theory is not an invention, a mathematical method is not an invention and a computer program is not an invention. But a X-ray machine for cancer treatment can be an invention even if it uses radio physics, MonteCarlo methods and computer programs to work.

According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.

You can insert "as such" anywhere you want, the meaning will not change. And that is why the uninportant 52.3 is not present in Swedish and Danish law.

I guess you missed the link to the forbidden path described in Dispositionsprogramm:

http://swpat.ffii.org/vreji/papri/bgh-dispo76/

This verdict is contemporary with EPC and explains clearly the limits of the patent system.

I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.

But you see, you shall read EPC 52 like this: You can get a blessing for saving a child even though you had to kill the dog that was attaccing it. But you can never get a blessing for just killing a dog. Analogy blessing-patent is stolen from:

http://swpat.ffii.org/stidi/epc52/moses/

//Erik Josefsson

Re:Directive is unclear

[Arnoud Engelfriet]

I found a EPC parser bug in "The First Mover Monopoly" [olswang.com] that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".

That's because that article, like me, is used to using these words as legal terms of art. Something can be an invention without being patentable (for example, if it's known). Other things cannot be inventions (for example, surgical methods). It's a matter of definition.

According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.

Absolutely correct, and I think this is still the current EPO practice. But they've split the evaluation up into two separate parts: is it "an invention" (ie not excluded by 52(2)) and second, is the invention obvious? Both are relevant questions when assessing patentability of something, but they're separate questions.

Reducing hard disk access time by adding a cache in RAM is an invention, according to the EPC. It's also extremely obvious, so you still won't get a patent, but that is a different question. Note that this invention nowhere mentions the use or presence of a computer program. It's a technical measure that most likely will be implemented in (OS) software, but that is not relevant to the evaluation.

You can insert "as such" anywhere you want, the meaning will not change.

I didn't insert that. The drafters of the EPC did. And we assume they did that for a reason, namely to lessen the restriction imposed by 52(2) in some fashion. In the first drafts, the "as such" wasn't there at all, but it was put in after objections from particularly the UK (Beresford, p. 19). So, why did they put it in and what does it mean?

And that is why the uninportant 52.3 is not present in Swedish and Danish law.

Actually, Denmark does have it in its patent law:

In particular the following subject-matter or activities as such shall not be regarded as inventions: ... programs for computers
(article 2)

So they simply moved it into the heading of the article corresponding to 52(2).

Swedish patent law doesn't use "as such", but rather says "merely":

The following shall never be regarded as an invention: that which is merely ... a computer program (article 1, second paragraph).

I'm not sure how similar "merely" and "as such" are, but they do seem to indicate the same thing: if what you have is more than just the fact that it's a computer program, then you may well have an invention.

I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.

Don't worry about getting me angry. I'm here exactly because I want to discuss these issues. It's also the reason I set up my website with patent information.

To finally answer your question (hopefully): the EPC, according to the latest case law, excludes only computer programs which do not produce a "further technical effect". That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is not an invention, because then you've claimed exactly a computer program as such.

If the application goes beyond such ordinary computer programs, then you do have an invention. For example, if you realize better control of a steering mechanism with a computer program, then that's a "further technical effect". Maybe the realization is an obvious use of computers, but that is another issue entirely.

I think the important part is: is this a desired interpretation of the EPC, or even, should the EPC have been drafted in this fashion?

Re:Directive is unclear

[Anonymous Coward]

"Something can be an invention without being patentable"

No, this is the same bug again.

Inventions are patentable, and there are no inventions that are unpatentable.

Two categories "inventions" and "non-inventions" map on the two spheres of matter and mind. The different worlds of mind and matter can not merge into one with word play (definition games). And if you read through the Dispositionsprogramm you find that the law was ment to separate them as much as possible. There are some philosophical arguments to append here, perhaps you can get a hang on danish:

http://softwarepatenter.dk/teknisk.html

Actually I was witnessing a very special moment when Dispositionsprogramm was read out loud to Fritz Teufel, IBM. Can you visiualize the scene?

You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.

You also know that a computer program is protected by copyright. You know BladeEnc? I know the guy who wrote that program. He wrote every line - it's his program. His own intellectual property.

You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.

I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.

Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.

"if what you have is more than just the fact that it's a computer program, then you may well have an invention"

You are getting closer ;-)

An invention can use scientific theories, mathematical methods and computer programs, but a scientific theory, a mathematical method or a computer program shall not be regarded as an invention.

From the original language:

SE: "Såsom uppfinning anses aldrig vad som utgör enbart"
DK: "Som opfindelser anses især ikke, hvad der alene udgør"

I think you can see for yourself that the danish WIPO translation is quite bad. An if "as sush" translates back from swedish to "merely" - I think I won the argument: the "as such" clause (EPC 52.3) is not important and could well be moved to the EPO guidelines.

"So they simply moved it into the heading of the article corresponding to 52(2)."

No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong (can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.

"So, why did they put it in and what does it mean?"

It sure does not mean that one entity can be divided into two categories: "the entity" and "the entity as such". You can find some interesting notes on UKPTO tradition here:

http://swpat.ffii.org/players/uk/

And since you are Dutch you should not have a problem with that ;-).

Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:

http://www.mofo.com/news/general.cfm?MCatID=&conce ntrationID=&ID=141&Type=5

Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?

//Erik Josefsson

horror gallery:
http://swpat.ffii.org/archive/pikta/

Re:Directive is unclear

[Arnoud Engelfriet]

"Something can be an invention without being patentable"

No, this is the same bug again.

I think we're going to have to agree on which dictionary we will use. The EPC makes "being an invention" one of the requirements for patentability, but not the only one. The light bulb, as originally invented by Edison, is an invention, but it is known and so cannot be patented today (although it was in the 1880s).

Inventions are patentable, and there are no inventions that are unpatentable.

So, you would say that the lightbulb isn't an invention, but rather that it was an invention, I suppose. Ok, I can understand that (it's the common use of the word), but please keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms.

Nevertheless, for the present discussion it does not matter, and the EPC does not consider computer programs as such to be inventions - in both senses of the word. :-)

You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.

True. That's why I was surprised when the EPO Board of Appeals (which btw includes several technically qualified people) came up with the "further technical effect", and made the distinction with "normal technical effects" that all computer programs exhibit. So it is not enough to say "This is a computer program", you have to demonstrate what this particular program does and why that particular effect is technical. I've given some examples in the context of business methods on my site.

You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.

I thought the MP3 encoding patents were held by Fraunhofer, but I could be wrong. My own area of expertise is digital rights management, not signal coding. And I don't think I want to comment in public on patents held by direct competitors of my company.

I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.

Well, you will have noticed by now that I work at the patent department of one of the largest electronics firms in Europe. So I am quite familiar with the state of the case law regarding software and business methods at the EPC. While I agree that the case law leaves much to be desired, I do believe that by now they have worked out a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus. Basically, it doesn't matter that the invention is embodied in software. If it were embodied in hardware, would the resulting effects then be technical? If so, it is patentable (assuming novelty and nonobviousness).

"So they simply moved it into the heading of the article corresponding to 52(2)."

No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong

I'm going to have to take your word for the translations of the EPC into Danish and Swedish. It would be interesting to see how these countries defend being in compliance with the EPC whilst ignoring this provision.

(can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.

"Beresford" refers to the book Patenting software under the EPC by Keith Beresford (ISBN: 0-752-006339). Oh, I see FFII has a review.

According to Beresford, they didn't even have an exclusion for software at all at first. It appeared first in 1971 as a point under discussion in the list of items like "mere discoveries" and "purely aesthetic creations". These "merely" and "purely" qualifications were finally moved to 52(3) when the EPC was adopted.

Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:

Yes. In fact, I've sat through several conferences that purport to teach you how to draft claims to get protection for software as such. It is not quite as simple as this article makes it appear. You can't just say "It's process control software and so it is an invention".

Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.

I am running my website as a private individual and so, by law, cannot infringe on any patents. Further, EP0895689 is not a patent. It's just a published applications, and those have no legal force.

Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?

I am defening the IP of a European software creator, although the software my employer makes is for a large part embedded in hardware. Our innovations were traditionally realized in hardware, and as such clearly patentable. Now that the industry trend is to move to more and more functionality in software, and we still desire to same level of protection for our innovations, you'll understand where I'm coming from. It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software. So a balance has to be struck between "all software is patentable" and "all software-related patents should be abolished."

As a final note, I am not speaking on behalf of my employer, in case that wasn't clear already. :-)

Re:Directive is unclear

[Carsten Svaneborg]

> If the application goes beyond such ordinary > computer programs, then you do have an invention. But ordinary computer programs that process data, which happen to represent business data, can get patented. Where is the technical effect or 'further technical effect' in this? The EPO examples of business methods you give on your website are examples for solving abstract non-technical problems using a computer. Here I define technical to mean applied knowledge to material objects and their fenomenology. And patents as a teaching of applied knowledge to a technical problem. Or in the language of the philosopher Karl Popper: the inventor using his world 3 knowledge to create an invention in Popper world 1. Brief explanation: Popper devided reality into three worlds. The first world is the world of material objects and their fenomenology, the second world is the world of perception, consciouness, and thought. And the third world is the world of abstract concepts, such as physical theories, matematical methods, logic etc. The third world consists of objective knowledge, that can be formulated in language and discussed. Said in another way, originally patents could only be given to problem solutions within Popper's first world (technical problems). The exclusions of the EPC are Poppers world 3. But increasingly the defintion of technical contribution has been weakened to no longer require application of knowledge about natural forces/laws of nature Technical problems are meerly practical repeatable problems according to Mark Schar (search FFII for his name). This means that the patent system is issuing patents on using computers to solve abstract logical problems within Poppers third world. Computers are clearly within Popper world 1, but the software the run represent Popper world 3 knowledge. Hence the patent system is in effect not issuing patents containing/formulating a learning of solving techncal problems, but they are issuing patents on using knowledge to solve abstract problems. Since this is basically what a program does, even though the program happen to control some physical device. Ofcause it's very nice that a patent does not cover performing the a software algorithm by hand, but most people do not want to do LZW compression by hand, everytime they want to generate a GIF file. So a patent is infact a monopoly on the application of abstract logical knowledge. The proposed directive does not propose clear limits for the patentability of subject matter, but meerly requires all EU member states to follow the EPO, in it's quest for new patentable subject matter within Popper world 3. This is definitely not what the drafters of the EPC had in mind! -- Best Regards Carsten Svaneborg

Re:Directive is unclear

[Carsten Svaneborg]

Once again with 'further readability effect'.

> If the application goes beyond such ordinary
> computer programs, then you do have an invention.

But ordinary computer programs that process data,
which happen to represent business data, can get
patented. Where is the technical effect or 'further technical effect' in this?

The EPO examples of business methods you give on your website are examples
for solving abstract non-technical problems using a computer.

Here I define technical to mean applied
knowledge to material objects and their fenomenology. And patents as a
teaching of applied knowledge to a technical problem.

Or in the language of the philosopher Karl Popper: the inventor using his
world 3 knowledge to create an invention in Popper world 1.

Brief explanation: Popper devided reality into three worlds. The first world
is the world of material objects and their fenomenology, the second world is
the world of perception, consciouness, and thought. And the third world is
the world of abstract concepts, such as physical theories, matematical
methods, logic etc. The third world consists of objective knowledge, that can
be formulated in language and discussed.

Said in another way, originally patents could only be given to problem
solutions within Popper's first world (technical problems). The exclusions of
the EPC are Poppers world 3.

But increasingly the defintion of technical contribution has been weakened to
no longer require application of knowledge about natural forces/laws of
nature Technical problems are meerly practical repeatable problems according
to Mark Schar (search FFII for his name).

This means that the patent system is issuing patents on using computers to
solve abstract logical problems within Poppers third world.
Computers are clearly within Popper world 1, but the software the run
represent Popper world 3 knowledge. Hence the patent system is in effect not
issuing patents containing/formulating a learning of solving techncal
problems, but they are issuing patents on using knowledge to solve abstract
problems. Since this is basically what a program does, even though the
program happen to control some physical device.

Ofcause it's very nice that a patent does not cover performing the a software
algorithm by hand, but most people do not want to do LZW compression by hand,
everytime they want to generate a GIF file. So a patent is infact a monopoly
on the application of abstract logical knowledge.

The proposed directive does not propose clear limits for the patentability of subject matter, but
meerly requires all EU member states to follow the EPO, in it's quest for new
patentable subject matter within Popper world 3.

This is definitely not what the drafters of the EPC had in mind!

Re:Directive is unclear

[Anonymous Coward]

I dissapionted you did not comment on the problem of overlapping property systems that will be legalized with the directive. I had some hope you were interested in a real discussion, but as I understand your comment, mind and matter will become one if we agree on dictionary use.

Again this is not true and not honest argumentation.

There is no doubt that philosophy of law acknowledge the existence of physical causality vs logical functionality as the nice pictures on FFII shows.

But of course, I will "keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms."

Here we have an example of the legal meaning of the concept "physical data" from your home page:

"Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data."

There is no doubt that philosophy of law will be destoyed if it is forced to integrate contradictory and/or meaningless concepts like these.

And when there is no law there is no justice.

But perhaps you don't care?

"a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus"

You know, It's a typical ingredient of irrationalist philosophy to belive that everything is the same or exchangable. It's useful for zen meditation - but not for law. I hope you got enlighted from the "several conferences" ;-).

I guess you are too young to talk to your employer about the possible advantges your company could gain from a software patent free Europe, as once it prospered from banning the patent system 100 years ago.

http://www.guardian.co.uk/comment/story/0,3604,665 861,00.html

But on the other hand, perhaps they just need a first mover to understand they don't have to pay the IBM-tax?

Is your company not interested in business models based on different exciting forms of copyright?

Like the VHDL processor LEON under LGPL?

http://www.gaisler.com/leon.html

What about embedded Linux? Or even distros? Don't you think there is money to make there?

//Erik

ps
listen to Dr Strassemeyer: http://www.sslug.dk/patent/strassemeyer/

"Basically it comes to business decisions. And we can't leave business decisions to the lawyers alone."

Is your company completely stuck in a business model based on software patent protection that arguably stifles innovation?

Re:Directive is unclear

[Arnoud Engelfriet]

I dissapionted you did not comment on the problem of overlapping property systems that will be legalized with the directive. I had some hope you were interested in a real discussion, but as I understand your comment, mind and matter will become one if we agree on dictionary use.

I'm sorry, I must have missed that comment. I'm just not sure I properly understand the distinction you're making, and that's why I was worried that we were using different definitions for the same thing. And once again, I am interested in a real discussion.

"Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data."

There is no doubt that philosophy of law will be destoyed if it is forced to integrate contradictory and/or meaningless concepts like these.

Please keep in mind that that article sums up present EPO practice. I'm not saying this is how it should be or even that it is consistent (in fact, it isn't). But I do not entirely understand your comments. If my device works on inputs from the physical world (like inputs from a sensor on an industrial robot), then why would that not be sufficient to make it an invention?

a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus" You know, It's a typical ingredient of irrationalist philosophy to belive that everything is the same or exchangable. It's useful for zen meditation - but not for law.

I guess you are too young to talk to your employer about the possible advantges your company could gain from a software patent free Europe, as once it prospered from banning the patent system 100 years ago.

I don't think age has anything to do with it. Right now we're faced with a situation where we can use patents to protect our innovations and R&D investments related to new devices like televisions and DVD players we put on the market. A lot of those innovations involve software, or at least implementations in software. How can I tell the business "Sorry, we can't protect your innovations if you choose to implement it in software; oh, and we can't do anything about competitors emulating your hardware functionality either"???

That's basically the issue. I don't care about "pure software" patents (whatever that may mean). Something that's entirely software or an algorithm is excluded. But if the software is part of a larger system, I firmly believe it should be patentable.

Oh, and as to abolishing patent laws in the 1850's, an important reason was that the patent law we had back then was really bad. And the jumpstart you get from being able to steal everyone else's inventions is nice to get your economy going (we were called "a land of highway robbers" by the rest of the world), but once your own R&D starts to take off, you want patents. That's what the Americans did in the 1790s, and the Japanese in the 1860s. And that's what the Netherlands did in 1912, after -what a coincidence- Philips became a big R&D company.

What about embedded Linux? Or even distros? Don't you think there is money to make there?

Is your company completely stuck in a business model based on software patent protection that arguably stifles innovation?

As we're an electronics firm, our business is selling boxes that do nice things. We have a very large R&D department, and they come up with lots of innovative ideas with lots of effort. The patent system was, from the very start, designed to allow businesses like ours to protect our investments.

In the past, those innovations would be hardware things (like new lightbulbs or new disc-shaped carriers and lasers to read data from them). Nowadays, most of those innovations are realized with the help of software. I simply cannot understand why this makes the situation different; the innovation is just as valuable, for reasons of economy we implement it in software rather than hardware, and then suddenly we can't patent the new television anymore?

But perhaps you don't care?

I don't think that's a fair comment. :-( I do care about the patent system, and I hate it when people get patents on obvious things, because they destroy the reputation the patent system has. Not to mention all the problems it causes in the world. I don't agree with everything you or the FFII say - but that's no reason to say I don't care.

Maybe we're just using the wrong words to express our respective views. Maybe it's the medium. I don't know. I do get the feeling we're not that far off, but you're coming from different principles than I do, and that confuses things.

Re:Directive is unclear

[Arnoud Engelfriet]

But ordinary computer programs that process data, which happen to represent business data, can get patented. Where is the technical effect or 'further technical effect' in this?

Actually, if the data is business data (like monetary values), then that produces no (further) technical effect. You'd then have to look at, for example, whether the amount of data that is transferred is reduced, or something like that. But then it's no longer a business invention, but a data compression technique camouflaged as a business technique.

The EPO examples of business methods you give on your website are examples for solving abstract non-technical problems using a computer.

I've tried to summarize also the technical problem they claim to solve. In particular the older ones are quite restricted (in their claims; don't ever accept summaries of patents as being representative of what they cover). For instance, EP 407 026 (Distributed system and method for matching of buyers and sellers) sounds like a financial trading technique, but it's actually a distributed computing system. The fact that it processes financial data is irrelevant to its patentability.

The "Method of holding an auction and uses of the method" (EP 1012764) is a business method as such and should never have been granted. In fact, we've started an opposition against this patent on exactly that ground, and I'm quite confident we will win that (e-mail me privately for details).

Ofcause it's very nice that a patent does not cover performing the a software algorithm by hand, but most people do not want to do LZW compression by hand, everytime they want to generate a GIF file. So a patent is infact a monopoly on the application of abstract logical knowledge.

I like your analogy, and I understand where you're coming from. But how do you distinguish between the three Popper worlds in practice? I mean, I can see the definitions, but I wonder how workable they are in practice.

I'm going to google a bit on that and get back to you.

Re:Directive is unclear

[Anonymous Coward]

"I don't think that's a fair comment."

I apologize.

"I do care about the patent system, and I hate it when people get patents on obvious things, because they destroy the reputation the patent system has."

You can contribute:

Make a list of real patents, taken from the EPO patent register, but reduce and simplify them so that they consist of.

- claim no 1
- description of the prior art
- description of the contribution (without implementation examples)

Make the assumption that the descriptions are correct and there is no more prior art anywhere to look for.

Then ask the questions:

1. Should this be patentable? Why (not) ?

2. Is the contribution a technical one? Why (not) ?

Publish your examples on your home page (send me a mail when :-).

Ask your company to ask your Government to insist that any new directive should be accompanied by this list of real examples. Reason: we have caselaw-oriented legal cultures in Europe and the courts everywhere have shown that they need examples in combination with rules.Without this there will be no legal security.

Ask your company to ask your Government to insist that example cases must be answered first, directive written afterwards.

If your company does not want to lobby in this direction, join your friends in FENIT or VOSN.

I am sure you have the skill and knowledge to find some interesting IP-tech patents that will pinpoint the weaknesses of the directive. You can also look in the horror gallery. You could actually make the Comission resolve the EPO "physical data" inconsistency by doing this.

"Maybe we're just using the wrong words to express our respective views".

I'm not sure that is the problem. Maybe it's the medium. I can only ask you to again read Dispositionsprogramm and "Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention". Read it slowly and think of how to boil a frog. I think the water passed the critical deadly temperature with T 1173/97. The Commission is now about to legalize overlapping legal systems and that will kill BladeEnc and hurt SMEs all over Europe.

"It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software"

Debugged: "It is simply not fair that an idea could be copied or imitated merely because it could be realized in software"

Copyright protects from both copying an imitation, so there is no need to worry. Perhaps even competition law could be applicable?

I can understand that you are worried about your company IP. But I think you agree that the law has to be written in the interest of the society as a whole. And perhaps patents on logical functionality is bad even for you?

Software patents are used like nuclear weapons in a deterrence arms race. They don't fulfil the win-win inventor-society purpose (the monopoly for disclosiure deal) of the patent system. We have to stop that don't you think? So please help.

Kind regards.

//Erik Josefsson

p.s. A little off topic, but you might find some inspiration from Borges :-)

Imagine you want to know if an animal belongs to the set of [all animals in the empire] described in the catalogue "The divine encyclopedia of useful knowledge" written by the ancient Chineese emperor:
(a) those that belong to the Emperor,
(b) embalmed ones,
(c) those that are trained,
(d) suckling pigs,
(e) mermaids,
(f) fabulous ones,
(g) stray dogs,
(h) those that are included in this classification,
(i) those that tremble as if they were mad,
(j) innumerable ones,
(k) those drawn with a very fine camel's-hair brush,
(l) others,
(m) those that have just broken a flower vase,
(n) those that resemble flies from a distance.

Re:Directive is unclear

[Arnoud Engelfriet]

You can contribute:
Make a list of real patents, taken from the EPO patent register, but reduce and simplify them so that they consist of: ...

So then I'd have a list of bad patents that should never have been issued. I can make such a list for any field of technology. What would this prove? That bad patents get issued? Sure, we know that. That it's more common in software-related fields to have bad patents? I can't prove that without doing the same for other fields and coming up with some common metric. And coming up with such a metric, and doing the evaluation in all those fields would mean a Ph.D's worth of work.

2. Is the contribution a technical one? Why (not) ?

I fundamentally disagree with the assumption that a technical contribution is necessary for something to qualify as an invention. The EPC is quite clear that something must qualify as an invention and as novel and as having an inventive step and as having industrial application. Therefore, the qualification for "invention" must be separate from novelty and inventive step. And you cannot identify the contribution without doing at least a novelty test, because you don't know what the contribution is if you don't check what the novel aspects are.

So, properly, the evaluation whether something has a technical contribution (which I do agree is absolutely necessary for patentability) cannot be done until after the evaluation of novelty. And that's why the Pension Benefits case rightfully put it with inventive step.

Nevertheless, we can then argue that such things are not inventive and so should not have been patented. But how would this convince the EPC-countries that are not caselaw-based, like Germany, France or the Netherlands? All of these currently allow patents on software-related inventions, the 1976 Dispositionsprogram or the Dutch Switching network) notwithstanding. See e.g. the 1993 "Barcode" (Streepjescode) verdict of the Dutch Patent Office.

I am sure you have the skill and knowledge to find some interesting IP-tech patents that will pinpoint the weaknesses of the directive. You can also look in the horror gallery. You could actually make the Comission resolve the EPO "physical data" inconsistency by doing this.

You still haven't explained to me what this inconsistency is. The EPO tries to resolve the "what is technical" issue with caselaw, and I identified a common theme in their caselaw: If you work with physical data, you're more likely to have a technical invention. That doesn't mean you can simply say "Oh, this data could be real world data, so it's an invention".

I'm not sure that is the problem. Maybe it's the medium. I can only ask you to again read Dispositionsprogramm and "Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention". Read it slowly and think of how to boil a frog. I think the water passed the critical deadly temperature with T 1173/97. The Commission is now about to legalize overlapping legal systems and that will kill BladeEnc and hurt SMEs all over Europe.

Wouldn't you say that the fact that the EPO threw out a pure business method (the pension benefit system) is a signal that they're coming round from the path taken in Sohei? In PBS, the fact that it was software wasn't enough to make it an inventive step.

Nevertheless, I've read the verdict and the Slippery Slope article. The article is written very much from a German point of view (understandably), but it provides no justifications for its premises. Very roughly, it says that the German system has a very good distinction between mind and matter, and that distinction is now getting very blurred, which is bad. Therefore, we must do something. This doesn't answer the question why this is bad.

Further, I do not see why the fact that there's overlap in the legal systems is a problem.

"It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software"
Debugged: "It is simply not fair that an idea could be copied or imitated merely because it could be realized in software"

No, that's not the same as what I said. An innovation is not necessarily a novel idea. If we come up with a technique to make a TV work at 100Hz, then that's not an idea, but a practical realization of an idea ("let's make a more stable picture by scanning at 100 Hz").

It then should not make any difference whatsover whether the technique is realized by a set of chips, by some chips and some software, or by just a bunch of programs. That's an implementation detail.

Copyright protects from both copying an imitation, so there is no need to worry. Perhaps even competition law could be applicable?

Copyright does not help me against someone taking the technical principles, or even the functional realization of my device. Most technical things are unprotected by copyright, precisely because they are technical things that have to be done like that, and not original expressions. So you're free under copyright law to copy my device, and changing the frills and bells to make it look different. And if it looks different, you're outside the scope of my copyright.

Competition law does not help, as we put products on the market ourselves. That means everyone is free to buy one and study it. Competition law thinks this is perfectly acceptable. If there is no legal means to prevent people from ripping off our innovations, then we will get ripped off and eventually go out of business.

We could sell the devices with restrictive license conditions (like the DMCA) that forbid reverse engineering, and then go after people with competition law and contract law. But you really don't want that.

I can understand that you are worried about your company IP. But I think you agree that the law has to be written in the interest of the society as a whole. And perhaps patents on logical functionality is bad even for you?

I agree, the law has to benefit society as a whole. But if you agree that new, technical developments are to be protected by patents, and you know that a lot of new developments is done with (embedded) software, then would you agree that patents should protect those new developments?

Re:Directive is unclear

[Carsten Svaneborg]

> Actually, if the data is business data (like
> monetary values), then that produces no
> (further) technical effect.

What about EP504287 "Method and system for remote delivery of retail banking services" valid in most of EU?

As I read this patent, this is valid if you use a browser to connects to an online webbanking service, and transfers a request for debiting or crediting your account a certain a monetary value. E.g. pays your bills online.

Where is the novelty? I have paid bills before this patent was issued! Where is the technical effect, or 'further technical effect'?

Business methods are not laws of nature, nor do they pertain to the fenomenology of material objects. That's why economy and physics are two very different branches of science, even though both business methods and scientific theories belong to Popper world 3.

> I've tried to summarize also the technical
> problem they claim to solve.

What is your definition of 'technical' or rather what is the EPO definition of 'technical'? I think all the softwarepatent issues are directly caused by the dismanteling of this concept.

According to Mark Schar (Former EPO judge):
http://swpat.ffii.org/vreji/papri/jwip-sc har98/ind ex.en.html

The objective concept of technicality, [..] requires mainly the four following criteria:

* solution
* of a problem
* in a practical and
* repeatable manner.

Because a solution implies a problem, one can reduce this definition by mentioning only three criteria which are then absolutely indispensable: - a practical and repeatable solution.

And according to Schar the following are not requirements for technicality:

* by using controllable forces of nature
* the direct consequence of the use of
controllable forces of nature

These two requirements limit patentable inventions to be within the Popper world 1. Numerous practical and repeatable problems exists within Popper World 3 (such as business methods), but the solution of these these have not previously been patentable subject matter, because they've been untechnical. Clearly a business method has some indirect consequences in world 1, e.g. transferring products. But this is not a direct consequence of applying the business method.

And he states:
The technicality concept discussed here corresponds to the EPO also in that context, by which it becomes clear form this alone that a computer program which is not destined to be used for the objectively ascertainable solution of a certain problem, cannot fulfil that concept.

E.g. computer programs that solve a objectively
ascertainable problem are by EPO standards technical. Hence, almost all programs are by EPO standards technical, and hence patentable.

This is why even though the EU commission directive talks about 'technical computer implemented inventions', they are essentially requiring unlimited patentability of software that runs on computers. Including software that when it runs happens to execute a function which is a business method.

E.g. EP 086 199 This is a queing problem.

This is completely abstract problem (world 3). Selecting a que subject to some preferential criterion is identical to the scheduling problem of multitasking operatingsystem, same problem different language, because the problem does not depending on technical issues.

By reading the summary, I guess that the invention is a machine that issues tickes with a que number on it, where the solution is determined using software that solves the abstract que problem.

Machines that issues tickets with que numbers are not novel, but they are technical apparatuses (requires natural forces). The solution to the queing problem is completely abstract. Thus the combination of a technical machine (known) and a completely abstract problem (also known) is novel and has technical effect?

Certainly the problem is practical and repeatable so if that is the definition of technical then the invension is technical, but is that good definition of technical from the perspective of the society?

> But how do you distinguish between the three
> Popper worlds in practice? I mean, I can see
> the definitions, but I wonder how workable
> they are in practice.

I see the commissions harmonisation directive as the direct consequence of the unworkability of the concept of 'technical', as indicated by Schar...

In the context of both Shar and Popper, it's essential for something to be objective that it can be formulated in language and discussed. Because if different observers can reach intersubjective concensus by debate, and thus define objective criterions using a common shared language.

The goal is to formulate objective criterions for patentale subject matter, and thus this requires first the definition of a language in which the patent problem can be discussed.

Clearly relying on the subjective interpretation of a word like technical does nothing to ensure objective harmonised patent practice. As the EPO slippery slope practice shows.

Thus as long as the EC commission directive does not attempt to define the language it uses, it will not result in harmonized patentpractice on the long term. Thus defining language and giving examples are important.

Returning to your question.

Requiring the direct application of natural forces to bring about the solution of a problem is a good start to ensure an innovation is a world 1 invention.

The que problem is not such an example, because the solution can be obtained without referring to application of natural forces.

But I grant you that it is an good question, which I'll think about.

--
Best Regards Carsten Svaneborg
http://www.mpip-mainz.mpg.de/~svanebor/

Previous Objects

[Martin S.]

This link also provides a good list of the previous objections raised to the introduction of patents.

http://www.patent.gov.uk/about/consultations/ann ex c.htm

Mainstream media

[Martin S.]

We need to start kicking up a fuss about this to the mainstream media, the results stink. The Patent Office has a clear conflict of interest in this situation and this is reflected in their position, a clear contradiction of the results of the Consultation Excercise.

The Patent Office will benefit from the 'power grab' following the expansion of patents, yet they are the ones, managing the consultation excercise.

The consultation produced a clear indication that software patents are not needed or wanted.

Yet the Patent Office has choosen to completely ignore this position and support the introduction of Software Patents in the EU.