EU Moves Towards Single European Patent Standard

theodp writes "A European Parliament committee Tuesday moved toward setting the first pan-European standard for software patents, but outlawed the U.S. practice of patenting business methods, such as Amazon's one-click Internet shopping. 'The European law sets the right benchmark rather than the looser U.S. system,' said the director of public policy for Europe at the Business Software Alliance, which represents 20 software companies including Microsoft and Apple. Amazon representatives in Brussels declined to comment on the new European legislation."

Comments

Amazon

[Threni]

"Amazon representatives in Brussels declined to comment on the new European legislation."

Yeah, they`re too busy trying to think of a way to stop their competitors from setting up shop in the EU whilst selling to US customers. And failing.

Re:Amazon

[Anonymous Coward]

If the competitors sell in the US they're still infringing the patent. A patent gives the owner the right to bar others from make, sell, and use the invention. Thus selling in the US would still be illegal. They can sell to the rest of the world though.

Re:Amazon

[Anonymous Coward]

This article is a lie of the Patent lobby. Ask the free software foundation Europe or FFII to learn more about these persons.

FFFII has the real story. Nice Quotes from HÃ¥kon Wium Lie, CTO of Opera Inc, Richard Clark, CEO of Elysium Co Ldt and chief editor for the JPEG standardisation committee, Bernd Runge of SAP AG, Bernhard Kaindl of SuSE GmbH, Dr. Karl-Friedrich Lenz, professor of Public Law and European Law, Aoyama Gakuin Daigaku, Tokyo, Jozef Halbersztadt, patent examiner at the Polish Patent Office and others.

Re:Amazon

[nerdlyone]

Yeah, they`re too busy trying to think of a way to stop their competitors from setting up shop in the EU whilst selling to US customers. And failing.

I am not certain about this, but I think offering soemthing for sale on the Internet subjects you to jurisdiction wherever the buyer accesses the net. So if a CA resident accesses my website and I live in NY, I am subject to jurisdiction in CA. I don't have to show up for the court date, but if I have assets in CA they can render a judgment against me and seize those assets.

So any company wanting to avoid US jurisdiction would have to keep all assets from the US.

Re:Amazon

[sander]

You didn't actually notice that it was about 'business methods', did you? You don't sell a business method, its how you sell. Hence you cannot have US infrigement, as long as you don't have a real US presence, as you wouldn't actually be doing the prohibited thing inside US.

One 'o' tooo many

[gammoth]

He meant, "the European law sets the right benchmark rather than the loser U.S. system."

(Yeah, I know. I have no plans to quit my day job.)

Re:One 'o' tooo many

[gammoth]

Redundant? I said it first, nimrod.

Re:One 'o' tooo many

[Anonymous Coward]

No instead we get to learn how to piss off the rest of the world, because they are so fucking arrogant and won't get off their high-horse and realize that they are the ones who talk funny, fuckface.

Re:One 'o' tooo many

[Anonymous Coward]

I'm only rapeing your wife and not your daughter. This sets the right benchmark rather than the practice of others.

Re:One 'o' tooo many

[Anonymous Coward]

Thats how i read it first too.

I started nervously looking out my window to
see if there was an aircraft carrier out there.
(yes i live in europe).
Then i realized my mistake and relaxed, but then
it occuree to me that Bush probably didn't get
it either and got nervous again.

At least sanity still prevails in some places

[dtolton]

It sounds like they have learned from some of the mistakes our
patent system has made.

Under the European law, software companies would obtain
exclusive rights only for programs that demonstrate novelty in
their "technical contribution."

Their reasoning: "We don't want to arrive at a model where
in the U.S. everything under the sun can be patented,"

I think they are approaching this from a better angle. I still
disagree with the general notion of patenting algorithms as
such. I don't think algorithms are invented any more than
mathematical truths are invented, rather they are discovered.
IMO, there is a difference and a patent shouldn't be granted on
that. Although, I will admit there is room to disagree with
that position.

It looks like they will be avoiding the major abuses we are
experiencing though, since you can patent a novel approach to
hand writing recognition, but not hand writing recognition in
general.

Now, the question is how do we get the U.S. government to adopt
this standard? Will it be like the Metric system, where we are
too entrenched to switch to a better system? Let's hope not for
our sakes.

Re:At least sanity still prevails in some places

[56ker]

Q. Now, the question is how do we get the U.S. government to adopt this standard?

A. Lobby your politicians

Q. Will it be like the Metric system, where we are
too entrenched to switch to a better system?

A. Nope, converting to metric is easier - however the software to do it is patented. ;o)

Re:At least sanity still prevails in some places

[Target Drone]

Will it be like the Metric system, where we are too entrenched to switch to a better system?

Considering that the patent office has turned into a revenue source for the government I'd say it's worse.

Re:At least sanity still prevails in some places

[osu-neko]

I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered.

I entirely agree with this, but I'm not sure if this is the right question to be asking. The question is, is there a benefit to the public to award a time-limited monopoly (aka a patent) for those who bother to go out and discover these things, or isn't there one? If it benefits us, we should do it. If not, we shouldn't. Whether it was a process of invention or discovery is moot if we can somehow encourage addition invention or discovery. But I'm skeptical as to whether the benefits are real, or more substantial than the problems that also ensue...

Re:At least sanity still prevails in some places

[Jezral]

I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered.

I don't think the right combination of iron parts that make up a ship is invented, rather it is discovered.
And so on, in all eternity...

By your logic, nothing is ever invented, but merely discovered. And you are right.
I agree that they are only discovered, but I also want the person/company who discovers them to benefit from that discovery for a while.

After all, it probably cost a lot of money and time in R&D to discover it...

Re:At least sanity still prevails in some places

[iabervon]

I don't see any particular reason that mathematical truths shouldn't be patentable, except that they wouldn't make particularly useful patents, since there isn't exactly any way to "use" them in the right sense for the restriction. Unless, of course, they are algorithms. Sure, they're discovered, but so is everything else. The functionality of a steam engine was no less true in 1776 than it is now, but nobody knew to do that then, just like RSA would have worked in 1776 if anyone had tried it. There is no real fundamental difference between algorithms and devices, as has become clear in these days when mechanical devices are being replaced first with digital circuits and then with software for an embedded computer.

There are plenty of problems with the patent system (largely concerning the vast quantity of patent applications and awarded patents overwhelming patent offices and inventors; the intent of the system is that every inventor read every patent applicable to the field, but this is impossible, and the patents aren't even available for a long time), but this isn't really one of them (except that people getting software patents tend to be sleazier than the average).

Re:At least sanity still prevails in some places

[EpsCylonB]

I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered.

Thats an interesting argument, imagine if Newton had been able to patent the use of the formulas he discovered ?. At the same time in today's competitive money focused world Newton may not have been able to claim credit for discovery without the patent system.

Re:At least sanity still prevails in some places

[GammaTau]

It sounds like they have learned from some of the mistakes our patent system has made.

No, we haven't learned from your mistakes, I'm afraid. Before EU started gathering together the directive, some countries, including Finland where I live, had no software patents at all.

Re:At least sanity still prevails in some places

[alefbet]

Their reasoning: "We don't want to arrive at a model where in the U.S. everything under the sun can be patented,"

I don't want to end up where everything is patented under Sun, either.

Re:At least sanity still prevails in some places

[Anonymous Coward]

After all, it probably cost a lot of money and time in R&D to discover it...

Maybe, maybe not. Software is non-physical, unlike a ship. In software, a sufficiently detailed specification IS the implementation.

Anyway, transferrable patent rights are not a tool to ensure the discoverer/creator benefits, they are a tool of control. Transferrable patents assignable to legal rather than only natural persons/entities allow oligopolies of "businessmen" to control industries and pick and choose what technologies "win", rather than engineers being allowed design things with the best information that science has determined with no restrictions.

Patents are a tool for executive overlords to keep the engineering chattels in line.

Re:At least sanity still prevails in some places

[Jedi Alec]

I couldn't care less what can be patented in the U.S. As far as I'm concerned the USians patent the sun itself, as long as we still get to sunbathe(you didn't hear me saying it's a GOOD idea) for free, thank you very much...

Re:At least sanity still prevails in some places

[LoztInSpace]

Wow! We'd have to pay fees not to fly off into space because we didn't licence gravity! Cool. Might save NASA a few $.

Re:At least sanity still prevails in some places

[Alsee]

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

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

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

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

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

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

-

Re:At least sanity still prevails in some places

[Halo1]

This report indicates that software patents (at least in the way they're implemented in the US) are not beneficial to the innovation process at all and that they in fact hamper it.

Re:At least sanity still prevails in some places

[Anonymous Coward]

If you look at how it has worked with purely algorithmic discoveries, it seems that it isn't a good idea.

In the software world, the trend has been to avoid anything involving a patented algorithm in favor of something unencumbered, making the acceptance of any patented technology significantly slower.

Arithmetic encoding has been known for quite a while, but most compression algorithms use Huffman encoding for the final bit-encoding phase because of the large number of patents covering arithmetic encoding (held by IBM, IIRC, and "improved upon" every few years so that they don't expire). Standards such as JPEG also allow for arithmetic encoding, but the implementations use Huffman encoding exclusively.

New algorithms occasionally gain popularity moderately quickly if they aren't patented (consider the Burrows-Wheeler Transform, popularized by bzip2).

For other areas, consider public key crypto - RSA is finally unencumbered in the US, and is likely to be more popular in standards for years to come compared to slightly more efficient techniques such as elliptic curves.

Re:At least sanity still prevails in some places

[kogs]

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

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

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

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

Re:At least sanity still prevails in some places

[pbhj]

In UK at least you can't patent an algorithm alone ... like it say patents need some technical effect ... so something additional beyond the mere algorithm needs to be patented: you might argue for bz2 that it is 'technical' as it requires less memory to hold files under this compression. The true meaning of technical in this context hasn't been well tested and is open to interpretation in the courts.

pbh

Re:At least sanity still prevails in some places

[anshil]

"""The question is, is there a benefit to the public to award a time-limited monopoly (aka a patent) for those who bother to go out and discover these things, or isn't there one? If it benefits us, we should do it. If not, we shouldn't."""

Well the key qustion is, is an awarded monopoly (patent) the only possible benefit you get from discovering things, or are there others too?

The answer here is easy. I say of course there are a dozend others. Solving a problem, market benefit, social credit, lower costs, scientific inquisitiveness, etc.

However the key question once again is, how important is the patent benefit and how important are other benefits im comperasion?

I say this applies on the field, and has to be investigated for every field seperatly.

For software I say, there is a high benefit rate for just solving a given problem. Most of the times the competition can't reverse engineer your compiled solution anyway in a market relevant time.

So the important question is where do patents hinder development, and where do they asisst development?

Re:At least sanity still prevails in some places

[ratamacue]

Considering that the patent office has turned into a revenue source for the government I'd say it's worse.

Every government program is a revenue source, because every government program has the specific effect of expanding the cost, scope, and powers of government. If it wasn't a revenue source, they wouldn't be involved in the first place.

Re:At least sanity still prevails in some places

[dylan_-]

People replying to my sig annoy me. That's why I change it all the time.

You don't change it all the time, just some of the time...

Re:At least sanity still prevails in some places

[BenTels0]

I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered. IMO, there is a difference and a patent shouldn't be granted on that. Although, I will admit there is room to disagree with that position.

From what I can tell just at a glance, it isn't exactly the idea in this proposal to allow patenting of anything as wide as a general algorithm or program. It seems to me that the basic notion is to allow patenting of the-program-in-its-environment-of-application; e.g. the software filter as it is used to filter static from a telephone conversation rather than the software filter per se. Pretty much what the EPO and national laws allow now, but more clearly defined (and not even unreasonable, if you think about it). The idea is not to allow the patenting of the mathematical method in general.

If you will, the distinction is that the patent has to allow room to a competitor to arrive at the same result in a different way -- you cannot lock out arriving at the result entirely (unless you happen to have separate patents on all the ways towards a result, but that's a different story).

Now, the question is how do we get the U.S. government to adopt this standard?

You don't; not with a Republican in the White House, at least.

Will it be like the Metric system, where we are
too entrenched to switch to a better system?

Probably.

Re:At least sanity still prevails in some places

[BenTels0]

Currently the European Patent Convention article 52 subsecion (2) (c) frobids patents on software. This is a good rule. These peopel want to CHANGE the rule and institute a US STYLE PATENT SYSTEM.

Not quite. The current practice in Europe is such that computer programs per se are not patentable, but they are patentable together with a device to which they are linked in a fashion that does not allow the link to be broken. So, for instance, the internal software of an i-Mode telephone itself is not patentable but the telephone and software TOGETHER AS A PACKAGE are (since the telephone is, in a real sense, not the same kind of device if you put different software on it). It's a backdoor that takes the form of effect-patenting (patenting the effect of combining hardware and software). This proposal hopes to replace the backdoor with something more manageable, not to introduce a US-style "patent whatever isn't nailed down" practice.

So where are the boundaries exactly? Unknown. We'll have to wait a bit until the court has created some jurisprudence on what is what. As always, with patents.

Re:At least sanity still prevails in some places

[BenTels0]

Unless, of course, they are algorithms. Sure, they're discovered, but so is everything else.

Errr, no. No, patent law makes a clear distinction between the "discovered" (i.e. it was always there but we didn't know about it before -- like the stars that we can only see now that we have the vastly improved telescope power of the combination scopes that have been built over the last three years) and the "invented" (didn't exist before it was built in any way -- like the motor car or the steam engine). The latter is patentable, the former is not.

Of course, that leaves the problem of functions in mathematics (which aren't discovered, but defined/invented). However, patent law takes a shortcut there and tosses the whole bit out.

Re:At least sanity still prevails in some places

[Ed Avis]

No, the 'novelty in technical contribution' criterion is meaningless in practice. Take a look at software patents already granted by the European Patent Office. These have been granted despite the fact that the current patent laws explicitly exclude programs for computers! The EPO has developed a spurious doctrine where a program may be counted as 'a computer program not as such', and thus patentable. Anyway, the current argument is about whether to amend the law so that the patents already granted by the EPO become enforceable. Given the EPO's past history of interpreting any rule as widely as possible, to allow as much as possible to be patentable, I don't have much faith in 'real technical contributions'.

What's needed is a simple, obvious rule that even the patent office can interpret correctly. The current European exclusion on 'programs for computers' is such a rule; the EPO has nonetheless managed to get around it by classifying some computer programs as not being 'computer programs as such' based on whether they have a 'technical contribution', but no court would accept such an argument, and it's courts that decide infringement. Rather than changing the law to match the patent office's warped interpretation, we should take the shocking step of asking the patent office to follow the law as written.

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>I don't think that computer programs are patentable (at present) in the
>EU. In answer to your question,

It was more of a rhetorical question :-).

>no I don't think that courts will agree with the position taken by the EPO.

I was discussing this on a mailing list
<http://liberte.aful.org/mailman/listinfo/pa tents> and one person
responded:

>Firstly, whatever theory may say, the national courts have been very
>happy to let the EPO Boards of Appeal make the running. The reason is
>quite simple: few judges in the higher courts understand patents and
>none understand software. In England, for example, there is no-one in
>the House of Lords and the only Court of Appeal judge with patent
>experience is Lord Aldous, aka Willie Aldous. In the High Court, Hugh
>Laddie is a chemist; I don't know anything about Jacob, Pumphrey or
>Neuburger, but none of them have afaik shown interest in the software
>problem; at least, they haven't written on the subject. In Germany the
>BGH is made up of pure lawyers who in my experience hate and fear
>technical stuff.
>
>This is reflected in the way the House of Lords has talked up the
>Boards of Appeal, referring to them as "judges in all but name". In
>other words, the highest court in England sees the Boards of Appeal as
>a court. In practice too, the English - and German - courts with the
>exception of the occasionally perverse and consistently overruled 17th
>Senate of the Federal Patent Court have sought to harmonise with BoA
>decisions. The only disagreements I'm aware of in England arise from
>older precedent, which the Patent Office feels bound by, in particular
>Gale's Application.

So he seems to think that the national courts, the Lords in particular,
will agree with the EPO's ruling because that's what they always do. I
suggested that while the national courts are happy with the EPO's
decisions made _within_ its remit (the EPC), they may not be so
accommodating if the EPO seeks to extend its powers outside those
granted by the Convention. But since there have been no cases so far
it's all just speculation.

I wanted to point you to the archives of the mailing list but the recent
messages have not yet appeared on the web page. I haven't mentioned you
by name or email address but if you want I could cc you on messages I
send, then you can join in the discussion. But you probably

Re:At least sanity still prevails in some places

[Alsee]

The current practice in Europe is such that computer programs per se are not patentable

Yep, exactly the same in the US. You can't patent pure software. And the rule is completely useless.

They are playing all sorts of word games, but the fact is that the software itself comes under patent protection.

There is absolutely nothing wrong with patenting something that happens to contain software, but the device MUST meet its patentability requirements based on the novelty and usefulness of the device itself. My better mousetrap my require software to control the parts, but I have to show how the physical parts are new and better given generic "black box" control.

The portion within software must not be a basis for granting the patent, and that portion must be exempt from patent protection.

Otherwise you are patenting math and patenting a sequence of thoughts.

-

Re:At least sanity still prevails in some places

[BenTels0]

They are playing all sorts of word games, but the fact is that the software itself comes under patent protection.

In the United States perhaps, but not here -- unless it is by mistake and then you can ask a judge to expunge the patent. but the device MUST meet its patentability requirements based on the novelty and usefulness of the device itself. My better mousetrap my require software to control the parts, but I have to show how the physical parts are new and better given generic "black box" control.

Ah. Well, that's the difference then: under the European Patent Treaty, there is no such requirement on the separate device. Instead, the novelty must be in the total of the device including the software, but the software must be an integral and inseparable part of the whole. Basically, you can have a patent on hardware-and-integrated-software under the condition that the whole minus the software is not a machine but rather useless junk and as a counterpart to that that the software isn't so general that it can function on a device other than that piece of hardware (so, for instance, a phone plus a nice Java-based game is NOT patentable, but the phone plus software that turns that phone into a remote for your garage door opener might be). The portion within software must not be a basis for granting the patent, and that portion must be exempt from patent protection.

Over here, the software alone may not be the basis for the patent, only the software in combination with the hardware. In that scheme, the software portion cannot be exempt from patent protection -- it is an inseparable part of the patented whole, in the sense that if you rip out the software the whole is no more.

Re:At least sanity still prevails in some places

[Alsee]

but the device MUST meet its patentability requirements based on the novelty and usefulness of the device itself.

Oops, confusion. I didn't mean that's how the US works. In the US system patents DO cover software. In that part of my post I was arguing how it NEEDS to work - without patents touching the software portion. My position is that it's absurd to patent software because...

Otherwise you are patenting math and patenting a sequence of thoughts.

The current US system and the proposed EU patent systems amount to patenting math or a patenting sequence of thoughts. Every program can in fact be translated into mathematical statement. And any program can be "run" purely mentally by thinking through each step.

Patents are supposed to protect physical objects. They aren't supposed to protect pure information / pure idea.

It's kinda like the reason laws against decrypting DRM are absurd (DMCA and EU Copyright Directive). Any decryption that can be done by a program can also be done through pure thought merely by thinking through each line of that program. It may be slow and tedious to "run" the program mentally, but it is allways possible. Making it a crime to decrypt means you can go to prison for sitting motionless and thinking certain thoughts. Making it a crime to "traffic" in circumvention tools means it's a crime to speak to someone and pass on the knowledge of that sequence of thoughts.

Patent law and copyright law are being pushed into areas they have no bussiness being.

-

Re:At least sanity still prevails in some places

[BenTels0]

The current US system and the proposed EU patent systems amount to patenting math or a patenting sequence of thoughts. Every program can in fact be translated into mathematical statement. And any program can be "run" purely mentally by thinking through each step.

I agree when it comes to software as such. However, I disagree with you where it pertains to software that is a unified whole with a piece of hardware in a patented object -- I think it is not unreasonable to allow a patent on the whole including the software that is a necessary part of that whole.
Also, I think that you're making more of the "patenting thoughts" argument than is reasonable. Under that kind of a rule, you would not be able to patent an abacus or Napier's Bones (just ignoring the fact here that they aren't new anymore), because you can do anything that you can do with those objects in your mind without them. For that matter, you might as well forbid patenting an engine because the same effect can be attained through physical labor.

All of that aside, I don't think you're right in saying that that is what the new EU proposal amounts to. The current proposal does, AFAICS, not allow patenting software as such, but only computer-based devices (which would be devices where the software is an integrated and inseparable whole with the device).

Patents are supposed to protect physical objects. They aren't supposed to protect pure information / pure idea.

No. Patents are supposed to protect inventions. Nothing anywhere states that an invention must be a physical object per se. It's just that if there is no physical part to your invention, that it will probably fall under the limitations on what is patentable under most national laws (mathematical methods, for instance). However, there is no reason why a non-physical part of an invention should not be covered by patent if it is really part of that invention.

Here's an interesting analogy that you might want to consider in this light: electricity. Electricity is not a physical object in the classical sense of property (even though, physically, electricity is usually a large collection of small physical objects). Nevertheless, you are not allowed (I assume at least) to steal electricity.

Re:At least sanity still prevails in some places

[Alsee]

directive on software patents ... MSWord's "Author" field suggests that it comes straight from the BSA's director of public policy

The directive was secretly written by the BSA (well, it was supposed to be secret LOL). The BSA is rabidly pro-software patents. They want software patentability as broad as possible and the standards to be as low as possible. The 800lb gorrila in the BSA's membership is Microsoft, with IBM being second.

I hope that's enough for you to believe that there's intentionally missleading information coming out about this directive. If that's not good enough, the only way to cut through the contradictory claims is to actually look at the text of the directive itself. It's tough reading unless you get an analysis with it. It's a huge reading project, but you can see for yourself right here. It goes into great detail explaining how the directive actually mandates almost the broadest possible patentability of even trivial "inventions" purely contained in software. It's long, but very informative. The directive is far worse than even I thought.

there is no reason why a non-physical part of an invention should not be covered by patent if it is really part of that invention.

The entire physical part is the computer sitting in front of you right now. According to the directive your PC is a required part of the invention. The actual "invention" is purely in the software.

"Pure software" means a printout of a program.

software that is a unified whole with a piece of hardware in a patented object

Exactly! This directive DEMANDS that they be evaluated as a unified whole:

A software "invention" alone is not patentable.
An ordinary computer alone is not patentable.

When evaluating this patent claim they must be considered as a unified whole. You now have a patentable claim in the software and you have patentable subject matter in the ordinary hardware. The two portions CANNOT be rejected seperately. How's that for evil and underhanded? The patent must therefore be granted.

you would not be able to patent an abacus

Sure you would. The abacus itself meets all of the qualifications of patentability. It's novel, non-obvious, and useful. I was saying you can't patent the software of how to add or take square roots on it, and that you can't rely on that software to fulfill any of the tests of whether the abacus is patentable.

The rules of patents and the rules of copyrights are different, and they are different for good reason. No matter how the patent rules work, the software involved is always covered by copyright. Any patentability of software means it's double-covered with both copyright AND patent. There is absolutely no reason for double coverage. It's broken and can do evil things like making interoperability impossible.

if there is no physical part to your invention, that it will probably fall under the limitations on what is patentable

LOL. That's totally circular. It's ok to patent it because it doesn't fall under one of the limitations, but the reason it doesn't fall under one of the limitations is because they are changing the limitations!

Nevertheless, you are not allowed (I assume at least) to steal electricity.

Private property. I am not allowed to tap into the power company's distribution wires. They just happen to use an interesting method of determining how much they charge for the right to connect to their property :)

Same reason cable TV is a valid business, but satallite TV isn't. I have to pay the cable company for the right to connect to their wires, and copyright prevents me from distributing the signal further. Only peopel who pay can watch. However satallite TV broadcasts a free encrypted signal to everyone. If it is illegal to decrypt that signal then they have to put me in prison if I were to decrypt it mentally. So either I can literally go to prison for thinking, or everyone can watch satallite TV for free.

-

Re:At least sanity still prevails in some places

[BenTels0]

The directive was secretly written by the BSA (well, it was supposed to be secret LOL).

Well, they were certainly consulted, I cannot deny that. However, that in and of itself is a bit of a "so what"-issue; the Commission is supposed to come up with a proposal, but it is up to Parliament and Council to agree, modify or reject.

I hope that's enough for you to believe that there's intentionally missleading information coming out about this directive.

Not really; I prefer to read the text itself in such cases, rather than to judge simply by "BSA = bad". After all, Frits Bolkestein had something to do with it as well; he has a reputation for not being a pushover. If he approved what became the proposal, it is unlikely to be a complete diktat.

If that's not good enough, the only way to cut through the contradictory claims is to actually look at the text of the directive itself. It's tough reading unless you get an analysis with it. It's a huge reading project,

Well, lucky for me then that I am capable of reading such things without too much difficulty. I spent a nice little evening reviewing the proposal (COM(2002)92), the JURI amendments to it, the EPC and the TRIPS treaties for good measure and your link fo the FFII site as well.

but you can see for yourself right here. It goes into great detail explaining how the directive actually mandates almost the broadest possible patentability of even trivial "inventions" purely contained in software. It's long, but very informative. The directive is far worse than even I thought.

Hmmphh. Don't be too impressed with their objections or their counterproposal. A good number of things the FFII says in that document are simply not true, or based on a misinterpretation of the EPC (they may not like it, but Art 52(3) EPC does still exist and it is as valid as 52(2)). They do have a number of points, but I have to say the JURI amendments rectify most of them -- the FFII document maligns Arlene McCarthy, methinks).

The entire physical part is the computer sitting in front of you right now. According to the directive your PC is a required part of the invention. The actual "invention" is purely in the software.

Ehrrrr, no. That's not what the draft directive is shooting for, at least -- although the wording is bad enough to make it seem that way. Again, the JURI amendments lock that down to within reasonable boundaries.

Exactly! This directive DEMANDS that they be evaluated as a unified whole:

Which I think is perfectly reasonable....

You now have a patentable claim in the software and you have patentable subject matter in the ordinary hardware. The two portions CANNOT be rejected seperately. How's that for evil and underhanded? The patent must therefore be granted.

There's nothing evil or underhanded about that. The two parts cannot be rejected separately because the two parts separately aren't anything -- they are an invention together and the concept of "the two apart" is meaningless in that context. It's like trying to separate the motor from the chassis in a conversation about a motor vehicle: you can pull the two apart, but then it doesn't make any sense anymore.

I was saying you can't patent the software of how to add or take square roots on it, and that you can't rely on that software to fulfill any of the tests of whether the abacus is patentable.

And the proposed Directive does not intend to change that. Mathematical methods or generic algorithms are not covered by the proposal -- especially with the JURI amendments.

Any patentability of software means it's double-covered with both copyright AND patent.

And there's your first hint that the draft Directive doesn't do what you think it does.

It's ok to patent it because it doesn't fall under one of the limitations, but the reason it doesn't fall under one of the limitations is because they are changing the limitations!

No, they aren't. Explicitly not, in fact. The

Re:At least sanity still prevails in some places

[Alsee]

I prefer to read the text itself in such cases

Ah, good. That's why I suggested it. Not everyone wants to go read pages and pages of legaleese.

A good number of things the FFII says in that document are simply not true or based on a misinterpretation of the EPC

Anything in particular?

Art 52(3) EPC does still exist and it is as valid as 52(2)

Ah yeah, the good old "as such" that's being thrown around. Please explain to me exactly when you think software IS software "as such" and when it is not.

My definition would be that software used as wallpaper, used as poety, used as a word game, would not be "software as such". Absolutely ANY use of software in a "computer implemented invention" IS using software as software. It is software as such.

I have to say the JURI amendments rectify most of them

JURI has considered a number of amendmend. Some of those amendments would in fact rectify problems. But have you looked at which amendments JURI have voted up and which they have voted down? They have systematicly rejected every one that might place any effective limit on the software patents.

They rejected an amendment saying pure human intellectual activity is not industrial application / industrial character. It's reminicent of my "thinking" argument. They refused to exclude thought from being patentable.

>Any patentability of software means it's double-covered with both copyright AND patent.

And there's your first hint that the draft Directive doesn't do what you think it does.

Are you saying I'm wrong and that double-coverage doesn't exist? Then why would JURI consider and reject 2 amendments to prohibit double coverage and approve an amendment requesting future evaluation of difficulties caused by double coverage.

Juri approved of the following amendment: "(a) "computer-implemented invention" means any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having one or more features which are realised wholly or partly by means of a computer program or computer programs"

Voted UP 18 to 8. They EXPLICITLY make WHOLLY SOFTWARE patentents valid. This is NOT about actual inventions that happen to have some software inside them. This is about patents on PURE PROGRAMMING.

>The entire physical part is the computer sitting in front of you right now... The actual "invention" is purely in the software.

That's not what the draft directive is shooting for... the JURI amendments lock that down to within reasonable boundaries.

That's exactly what they are shooting for, and JURI rejected every amendment that would set boundries.

You now have a patentable claim in the software and you have patentable subject matter in the ordinary hardware...

There's nothing evil or underhanded about that.

So you explicitly want patents purely on software running on ordinary PC.

The two parts cannot be rejected separately because... "the two apart" is meaningless in that context.

By that logic EPC Art 52(2) is completely meaningless. It can NEVER apply because software ALWAYS runs on hardware.

Mathematical methods or generic algorithms are not covered by the proposal

Except when they are used on an ordinary PC. Then they are patentable. (P.S. What's the difference between a generic algorithm and a non-generic algorithm? LOL)

They are working within the room left them by the EPC and TRIPS treaties

As I said, the only way they can pass this is through redefinitions/reinterpretations that say EPC Art 52(2) never applies to anything.

the fact that software is also private property.

Sigh. This comment alone can turn into an entire pointless linguistic/philosphical argument. Information is not and cannot be property. Patents and copyrig

Re:At least sanity still prevails in some places

[BenTels0]

Anything in particular?

The justification (and by consequence also the contents) of the first amendment to recital 7, which is not correct but rather based on wishful thinking. And of course also the justification for the amendment to recital 10; EPC 52(2) may mention non-inventions, but that still doesn't mean that every invention is patentable. Not to mention that the word "idea" is completely wrong, since an idea is never patentable. Only inventions based on ideas, but not ideas as such.
But it isn't just the EPC either; the justification for the amendement to recital 8 is also dubious at best, given that patents exist to allow the publication of inventions without risking your ability to make money from it.

Ah yeah, the good old "as such" that's being thrown around.

Again, that you don't like it doesn't mean it's not there.

Please explain to me exactly when you think software IS software "as such" and when it is not.

Software as such is software that is not being considered within the domain of a specific problem. Whereas software that is being considered within such a domain is part of a solution to the problem. Consider the following analogy: a metallic filament of a certain composition and bent to a certain specification is not a patentable invention. But a special spring for a certain, specific purpose is.

My definition would be that software used as wallpaper, used as poety, used as a word game, would not be "software as such". Absolutely ANY use of software in a "computer implemented invention" IS using software as software. It is software as such.

Ehrm, yes. But keep in mind that that is your definition, not the definition of the legislators (neither the current or the ones back in 1972). And I fear that theirs is the one that counts.

But have you looked at which amendments JURI have voted up and which they have voted down? They have systematicly rejected every one that might place any effective limit on the software patents.

No, I have just read the final report by the rapporteur. And I don't agree with your assertion -- the new recitals 13a-c and Article 4a are nothing if not limiting.

They rejected an amendment saying pure human intellectual activity is not industrial application / industrial character. It's reminicent of my "thinking" argument. They refused to exclude thought from being patentable.

As I would have. First of all, it would have been repetitious in the context of the EPC, which is where the proposed Directive must exist. Second, within that context, such a statement either says that nothing is patentable at all (since all invention is based on human thought), or it says nothing at all (since the pure thought part of an invention is never covered as such by the patent).

Then why would JURI consider and reject 2 amendments to prohibit double coverage and approve an amendment requesting future evaluation of difficulties caused by double coverage.

The first because there's no point (it's repetitious in the context of the EPC, TRIPS, the Berne Convention and the Paris Convention) and the second because mistakes are made where human beings enter the picture (and there's no point in legislating against double coverage for this reason either -- mistakes are by their nature not things that extra legislation will stop).

Juri approved of [...] computer programs"

I'll grant you (and the FFII) that the definition is overly broad at first glance. But then, it is supposed to be taken with the whole of the Directive, not just as a separate piece. Note, by the way, that your emphasis does not correspond to the actual amendment by JURI.

Voted UP 18 to 8. They EXPLICITLY make WHOLLY SOFTWARE patentents valid. This is NOT about actual inventions that happen to have some software inside them. This is about patents on PURE PROGRAMMING.

JURI also approved an amendment introducing a new Article 4a, which forbids patents on software that "do[es] not produce a

Re:At least sanity still prevails in some places

[Alsee]

Software as such is software that is not being considered within the domain of a specific problem.

Like I said, that definition is meaningless. The "problem domain" is defined to include software itself. ALL software that runs is doing so to solve a specific problem. The only thing your definition excludes is software written as poetry.

The amendments they didn't reject are all based on definitions that place no real limit on patenting pure software running on an ordinary PC.

Computer-implemented invention is defined as features which are realised wholly [] by means of a computer program. You objected that "it is supposed to be taken with the whole of the Directive, not just as a separate piece". But as a definition it is in fact "seperate peice", and that peice is used to interpret the rest.

One amendment you point to says "pure algorithms" are "non-technical", but the directive defines that all running programs are technical. The instant you add "running on an ordinary PC" it becomes patentable. The "limitation" never applies.

Another amendment you point to says that program or business method that makes no technical contribution is unpatentable. But the directive defines programming is technical. It defines any "new" code is a technical contribution. All the limitation says is you can't patent prior-art. That is not a new limitation, therefore the amendment never limits anything.

13a-c Article 4a are nothing if not limiting

I wish they were, but it's all about definitions. The ones that weren't rejected appear to be limiting, but use non-limiting definitions.

A non-generic algorithm is an algorithm that constitutes a specific solution to a specific problem of industry (so not mathematics).

Their definition of industry includes the software industry. Every algorithm ever used in a program is solving a problem of the software industry. Therefore the only "generic algorithm" is one which is never used in software. Yet again nothing is ever excluded. They rejected an amendment 2(ba) that would define industry to mean physical effect, it might have placed some limit on patenting software.

forbids patents on software that "do[es] not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus". In my view, that excludes...

And I am basing that heavily on the fact that normal is what is not new.

You are mixing the "technical effects" and the "physical". They define that programs are technical and technical effects can be purely software, like wordprocessing. They are just applying plain-old prior art limitations to patenting pure software "inventions".

They have rejected absolutely every amendment that even hints of any physical requirement (other than that it must run on something, including ordinary hardware).

EPC 52(2) also states that methods for carrying out mental labor are not patentable -- yet even you agree that an abacus is patentable

????? The "yet" in there makes no sense.

Of course I said an abacus is patentable. An abacus is a thing, a patentable tool. An abacus is not a method. The directive would allow a patent on the method of taking a square root on an abacus.

Art52(2) allows a patent on a (new) abacus. It forbids a patent on the method of taking a square root on an abacus. The directive would allow a patent on the method of taking a square root on an abacus - even on a non-new abacus.

-

Re:At least sanity still prevails in some places

[BenTels0]

Like I said, that definition is meaningless.

No, it isn't. You want it to be meaningless, but that is something completely different.

But the directive defines programming is technical. It defines any "new" code is a technical contribution.

No, it doesn't. You're reading the draft as it was before JURI amended it -- in the current proposal, both Recital 12 and Article 4a clearly state literally the opposite of what you are saying here.

You are mixing the "technical effects" and the "physical".

Of course I am. "Technical effect beyond the normal physical interactions between a program and the computer, [etc.]" limits patentability immensely, way beyond the realm of pure software like wordprocessors. That's the point: wordprocessors, spreadsheets, anything that lives within a normal computer and is not written specifically to be used on one special piece of hardware is a program as such and not patentable. That's the point.

They define that programs are technical and technical effects can be purely software, like wordprocessing. They are just applying plain-old prior art limitations to patenting pure software "inventions".

They also say that being software or involving a computer in and of itself is not grounds for patentability -- you cannot pick and choose those parts of the Directive that you want to see and ignore the rest.

They have rejected absolutely every amendment that even hints of any physical requirement (other than that it must run on something, including ordinary hardware).

I disagree. I think Article 4a nicely limits patentability to that which meets the type of physical requirement you are looking for.

????? The "yet" in there makes no sense.

Yes, it does -- the point is the meaning of the phrase "as such".

Of course I said an abacus is patentable. An abacus is a thing, a patentable tool. An abacus is not a method. The directive would allow a patent on the method of taking a square root on an abacus.

An abacus is a tool that implements a method for keeping count, namely by moving of beads (markers, tokens, etc.) from one stack to another in such a way that the stacks represent digits. That is the idea and the method -- and yet an abacus is still patentable, because you cannot patent ideas as such. But you can patent applications of such ideas. In other words, "as such" is far from meaningless -- it is the very essence of patentability, since it allows that you can patent inventions even though every invention is based on an idea.

Like I said [...] ordinary hardware).

Look, I'm going to suggest we quit this discussion. Basically, our difference stems from the fact that you want this proposal to say one particular thing whereas I don't believe that it even can say that thing. So we're just going to keep going around in circles and not getting anywhere.

Re:At least sanity still prevails in some places

[Alsee]

You want it to be meaningles

LOL, no, I want it to be meaningfull, and I think it currently isn't. I want the versions that clearly state an invention must contain something novel outside of software. Can you find a anything requiring novelty to exist outside of the software? Every amendment to this effect was rejected.

If there were any novelty outside the software then they wouldn't need this directive in order to get the patents. Just patent the novel hardware and they're protected. The only reason to change the rules is to allow patents on things that were not patentable before the change.

Can you find anything stating that programs are not technical / a feild of technology / have technical character? Every amendment to this effect was rejected. The limitations you are reffering to don't work if programs are technical. Technical contributions then means novel code. And allowing the novelty to be in the code is not a meaningful limitation.

Recital 12 amended says computer-implemented invention belongs by virtue of its very nature to a field of technology.

They also say that being software or involving a computer in and of itself is not grounds for patentability -- you cannot pick and choose those parts of the Directive that you want to see and ignore the rest.

I saw it. The grounds for patentability also require novelty. The problem is that when the novelty is purely in the code then they are patenting pure software.

EPC 52(2) also states that methods for carrying out mental labor are not patentable -- yet even you agree that an abacus is patentable

The 'yet' makes no sense because there is absolutely no conflict. The a device is patentable. A method run on that device is not.

An abacus is a tool that implements a method for keeping count, namely by moving of beads

There are a wide variety of methods you can run on an abacus, and none of those methods are patentable. You can't patent the steps to find a square root using the abacus. I'm a programmer, and the difference between the tool and the algorithm run on that tool is like night and day.

Question: Are you a programmer?

-

Re:At least sanity still prevails in some places

[BenTels0]

LOL, no, I want it to be meaningfull, and I think it currently isn't.

Then you need a remedial course in the basics of intellectual property law -- the meaning of "as such" in the EPC is basic stuff. Any IP introduction for engineers will do.

I want the versions that clearly state an invention must contain something novel outside of software.

Then you want the unnecessary.

Can you find a anything requiring novelty to exist outside of the software?

In the current proposal before the EP? Yes, for the, what is it now, fourth time: Article 4a of the draft Directive. Not to mention the EPC itself, of course.

The only reason to change the rules

They aren't changing the rules.

Can you find anything stating that programs are not technical / a feild of technology / have technical character?

Of course not -- it's not generally true.

The limitations you are reffering to don't work if programs are technical.

Yes, they do. The limitations are in place and you cannot pretend they are not just because you want to. The text of the proposal is the text, the text is not what you make up on the fly. Not to mention that the proposal does not amend or contravene the EPC, so the conditions of that treaty remain in force. As is the intention of the proposal.

I saw it. The grounds for patentability also require novelty. The problem is that when the novelty is purely in the code then they are patenting pure software.

No, that is not so. Either they are patenting the result of combining novel software with specific hardware, or they have obtained an illegal patent -- in which case a short trip to the court will make that patent evaporate, just like with all such patents. There are safeguards against mistakes being made, you see -- a bad patent need not simply stand.

The 'yet' makes no sense because there is absolutely no conflict. The a device is patentable. A method run on that device is not.

Again, not true. An INVENTION might be patentable, a device in and of itself is not necessarily patentable. Again, there is no direct requirement for an invention to be a physical thing, and a physical thing is not patentable by definition. That aside, an abacus is an implementation of a model of numbers if nothing else. The reason it is patentable is because models are not patentable as such, but implementations of those models can be. Again, you cannot pick and choose in which parts of the EPC you honor -- the "as such" has a meaning and this is it. More to the point, if there were no Article 52.3 EPC, an abacus would not be patentable.

There are [...] and day.

Undoubtedly. However, that has not given you any real insight into the workings of the different patent laws that are in effect or in proposal in Europe.

Question: Are you a programmer?

Programmer and more to the point master of science in computing science -- with a number of courses on intellectual property law as part of my education.

Something Freudian about the U.S. Patents Office

[Anonymous Coward]

'The European law sets the right benchmark rather than the looser U.S. system,'

Am I the only one who misread this as the loser U.S. system?

I like it!

[suteri]

outlawed the U.S. practice of patenting business methods, such as Amazon's one-click Internet shopping

Perhaps the EU parliament (or whatever) isn't as useless after all. Though what will become out of this pan-European system in a few years? Let's keep our fingers crossed..

Re:I like it!

[Anonymous Coward]

Perhaps the EU parliament (or whatever) isn't as useless after all. Though what will become out of this pan-European system in a few years? Let's keep our fingers crossed..

The E.U. won't last long. Already nationalist parties are popping up all over europe again. Infact the continent has already banned one such national party in austria (Euro-Nations demanded it be broken up or austria would be sanctioned). The so called center-right/left parties are falling apart for more left-wing and right-wing parties. I honestly never thought that europe would remain this calm for this long.

Great Britian is not a member and thats one missing key and considering that the public has switched into a no euro mode they will not be drawn closer into the E.U.

Did you really believe that so many nations with so many different languages and cultures would become one country?

Re:I like it!

[infolib]

Unfortunately for you, the blurb and the article fell for the propaganda tricks of one of the more useful (to whom?) members of the Parliament.

Re:I like it!

[a_n_d_e_r_s]

Well before this most countries did not have software patneten so no its quite the opposit.

Its a sad day for free software.

The law is not much different in practice from the current American system.

Re:I like it!

[Anonymous Coward]

> Infact the continent has already banned one such
> national party in austria (Euro-Nations demanded it be
> broken up or austria would be sanctioned).

It's all relative. An (Austrian) friend of mine was in the U.S. for a whole year (that was before 9/11!). When he came home he told me that our Austrian "far-right" (9%) party would still qualify as a left(!) party compared with both the Republicans and the Democrats. Funny, isn't it? :->

Hallelujah

[freedommatters]

thank god for that. if europe were to follow the us system we'd all be totally screwed. now we need to put pressure on the us to change their system.

john
All I Want For Christmas Is My Constitutional Rights

Re:DID YOU RTFA?!?

[Anonymous Coward]

Who the hell lives in Europe?

1.0 is never perfect

[kin_korn_karn]

The US patent system was the first of its kind. The first version of anything is never the best version.

I just wish our government was less like those people that claim engine design peaked in the early 70s. (there are lots of them in the south)

Re:1.0 is never perfect

[dtolton]

Business method patents weren't added until the late 1990's. In fact our patent and copyright system has gone through extensive changes to make it less beneficial IMO. I would argue in fact that version 1.0 was *far* more desireable than what we have now.

Laws are not like software. Software gets better with time, Laws and regulations often go the other direction.

Re:1.0 is never perfect

[borgdows]

>The first version of anything is never the best version.

yup! but you could also say that the second version of anything is never the best version. The third version is!! er, wait.. the fourth is! ...er... never mind.

Re:1.0 is never perfect

[mickwd]

"The US patent system was the first of its kind. The first version of anything is never the best version."

Yeah, that's why the US-designed Internet never really caught on.

D'oh......

(Or should that be S'co........)

Re:1.0 is never perfect

[George Wanker Bush]

U S A!
U S A!
U S A!

Re:1.0 is never perfect

[3247]

Yeah, that's why the US-designed Internet never really caught on.

...until the World Wide Web was invented at CERN, GenÃve, Switzerland.

Yeah, you got it.

Re:1.0 is never perfect

[r0xah]

I totally agree with you that the first version is never perfect, but then that would beg the question... why are we still using the first version or at least a fairly unchanged one at that? A patent system that allows companies to patent something and go try to make millions off of it when they aren't even producing the product is seriously flawed... patents should be so that the small entrepreneurs to the big businesses can make up an idea and make money off of it without getting smashed by the competition who can make it cheaper. Another huge problem is the length of time it takes to get a patent. A large company has no problem with waiting an amount of time, but a person who is trying to start a business can run into major problems if it takes a year or more to get his patent through and costs a forturne to do so.

Re:1.0 is never perfect

[jericho4.0]

Are you suggesting that the 'internet' as we know it is the best of all possible 'internets'?

Re:1.0 is never perfect

[Anonymous Coward]

That's obviously not true. What about the internet before the DMCA? WAY better in my opinion.

Re:1.0 is never perfect

[wfberg]

The US patent system was the first of its kind. The first version of anything is never the best version.

The following is (c) wikipedia, GNU Free Documentation License.

Patents originated in England with the Statute of Monopolies 1693 under King James I of England. Prior to this time, the King could issue letters patent providing any person with a monopoly to produce particular goods or provide particular services. This power was widely abused; thus Parliament restricted it through the Statute of Monopolies so that the King could only issue them to the inventors of original inventions for a fixed number of years. Section 6 of the Statute refers to "manner[s] of new manufacture...[by] inventors", and this section remains the foundation for patent law in England and Australia. The Statute of Monopolies was latter developed by the courts to produce modern patent law; this innovation was soon copied by other countries.

You know, there already were laws prior to the Declaration of Independence and the drafting of the Constitution..

Re:1.0 is never perfect

[Anonymous Coward]

''The US patent system was the first of its kind. The first version of anything is never the best version.''

No, it wasn't. IIRC, patents originated in england. They were certainly in use in europe before there *was* a US.

Everybody (worldwide) likes to claim that things were 'invented here'. We in the US are no differenent, we have a whole mythology (electric lights, phones, etc.) of things we mistakenly claim as US inventions....

Re:1.0 is never perfect

[jafac]

that's not true at all.
While in general, newer software versions lead to improvements, there are many examples out there of points in the evolution of an application where it just took a bad turn somewhere, and never found it's way back.

Sure, there are new features, which, when compared to the competition, are MUST HAVES, but when compared to the old software, which just plain does what you needed it to do and did it well.

Software gets bloated with undesirable crap, often at the behest of Marketers, Lawyers, and Accountants, rather than Engineers.
So when you have LAWS written by Industry Lobbyists and the politicians who answer to them, (instead of politicians who answer to their voting constinuency), of COURSE you'll get unwanted feature-creep.

Re:1.0 is never perfect

[Anonymous Coward]

As a Uk patent professional I find this to be a farcical statement of fact. The first patent system can be traced back to the 1400's in Venice. Modern patent law can trace its origins at least as far back as the Paris Convention of the 1850's. The US patent system is not only more recent, it was not until the GATT (now WTO) talks circa 1986 that the US became a credible place to enforce patent law unless you were a US national.

On a separate note the US Japanese and European system are likely to converge considerably in the coming years. If you wish to inform yourself search google for USPTO or EPO and tri-lateral consultation.

Re:1.0 is never perfect

[sl956]

The US patent system was the first of its kind.

Patents originated in England with the Statute of Monopolies 1693 under King James I of England.

...while the first USian patent statute was passed on April 5, 1790, by the Congress of the twelve United States and signed into law on April 10 by the President.

But the concept of patent appeared about 500 B.C. in the Greek colony of Sybaris. The Sybarites, who enjoyed living in luxury, made a law that if any confectioner or cook should invent any peculiar and excellent dish, no other artist was allowed to make this dish for one year. He who invented it was entitled to all the profit to be derived from the manufacture of it for that time.

On a side note, the earliest English letter patent known is dated April 3, 1449. It was granted to John of Utynam for his art of making colored glass.

Re:1.0 is never perfect

[bursch-X]

JFC* , it took them 6 versions to even get IP right with IPv6. And we're not even using it yet!








*Jeesus-Fucking-Christ

Re:1.0 is never perfect

[rifftide]

Maybe the pioneering American system can be dubbed NTSC, or "Nuisance Tolls for Straightforward Concepts". The improved European model would be PAL ("Patents Are Lame").

Re:1.0 is never perfect

[canadian_right]

Parent never heard of google? Here is a link to a short history of patents:
Patent History, USA and Europe

Re:1.0 is never perfect

[Anonymous Coward]

Some mistakes should be made only once. Version 2.0 of the prohibition (aka "War on Drugs") failed as miserably as version 1.0, because the idea itself is, frankly, bullshit. The same applies to software-patents.

Re:1.0 is never perfect

[Cyno]

AhHa! The patent system was sane at one time. 1 year sounds reasonable. So WTF happened? Why do we become so stupid after eons of evolution? Is this how we are evolving?

Global Patent Jurisdiction

[PetoskeyGuy]

Could someone please mention where patents on web based applications or "business-models" ( a cookie?) are actually valid?

Does a patent on a web technology apply to where the server is operating, who owns it or who's using it?

Re:Global Patent Jurisdiction

[Hal The Computer]

I'll use the Island of Madagascar (sp?) as an example because I've never been there. Say you live in Madagascar. If you set up a web server you can use any technology you please, so long as it is not illegal in Madagascar. You could have your own one-click shopping system and that would be just fine. Someone who lives in the United States is probably even OK in using your web server because they are not acually violating Amazon.com's patents. Amazon.com could probaby take you to court in the U.S., but if you live in Madagascar, you could just laugh at them. Bottom line, obey the laws of the country you are in.

P.S. I am not actually a lawyer if you are putting your life in my hands with your buisness DON'T! Stop being cheap and go reatain a good lawyer.

Re:Global Patent Jurisdiction

[SpaceJunkie]

Wait a minute, does that not mean that by setting up data havens in smaller countries, we could get as much reverse engineered code, music and other copyrighted materials dwon as possible, and then create a local equivalent of the GPL(BSD or your own favourite open software model) and stick all under that, so that should patenting change - its already licensed..
Tell me where ... I'll glady move and set up my own server... hehe...
Also maybe some very decent intrusion detection - so we can destroy MPAA and RIAA computers before than can ours.. After all -we are only defending our property(the server is our property).

The new

[Anonymous Coward]

cold war.

looser?

[bluelan]

Typo - make that loser system.

Re:looser?

[bluelan]

Doh! 17th post and already redundant thrice.

Re:looser?

[Shadow Wrought]

I've been there. The best part is when you get mod'd down as redundant and you posted within like 3min of the story coming out;-) Of course when I read looser I was thinking along entirely different lines...

Re:DID YOU RTFA?!?

[Anonymous Coward]

I may have been an idiot and mistyped that, but you are the idiot who couldn't figure out what I meant. U R TEH SUX0R.

software patents in the EU

[56ker]

A piece of software is covered under copyright laws - the same way a piece of art or music is. If the EU go the route of the US in allowing software patents it damages software development in the long term.

Re:software patents in the EU

[boy_of_the_hash]

My sentiments exactly. Software can only be patented as part of a genuine invention. Let's see them try and stop patents on everything else that is traditionally protected by copyright but can now be patented if hidden away as part of a patentable invention.

I guess the loophole they have created paves the way for a hack in the same way the GPL uses copyright. If only I was smart enough to figure it out.

Re:software patents in the EU

[56ker]

" If only I was smart enough to figure it out." - yep that's why the world has lots of patent lawyers. ;o)

wrong!

[Thinkit3]

The only sane thing to do is banish all "intellectual property" laws.

Re:wrong!

[George Wanker Bush]

See? That's what you get for being a fucking subscriber.

Re:"Looser"

[Anonymous Coward]

No. And I'm pretty sure that I'm not the only one that read your post as "I'm a redundant bastard," either.

thank god for europeans

[castlec]

hurray for europeans!!! first they gave us culture, then they gave us linux, now they give us some common sense

Re:thank god for europeans

[Anonymous Coward]

You're welcome. Always glad to contribute my part !

Re:thank god for europeans

[Anonymous Coward]

Yeah they also gave us the thirst for world domination. Thankfully for the rest of the world we haven't followed in their colonial footsteps completely, or else Iraq and Afghanistan would be nuclear glass factories.

Still all happy and cheery?

Re:thank god for europeans

[CausticWindow]

Don't kid yourself. Even if the US wanted to (and they do, believe you me), with todays global political climate, they would never be able to be old fashioned colonial lords.

But, that's not saying they're not trying. Their faux pas, new colonialism du jour, is catching on with americans in general. It's economocial colonialism in all it's glory.

Re:thank god for europeans

[beta21]

Actually the middle east gave us culture first. Credit where its due

Re:thank god for europeans

[bursch-X]

I think the Celts in Europe did fine with their own high-culture even before the Romans, without intervention of the Arabs ;-)

Only in the late middle-ages think were getting a bit dim, so Europeans started getting their ideas from somewhere else (Arab world), but selling them as their own, setting the foundation stone for Microsoft's business model as we know it today.

Re:thank god for europeans

[kinnell]

Most of what we would call western culture originated in Greece. Apart from inventing culture in the first place, the main contribution of the mohammedans was protecting it from the rise of catholicism.

Re:thank god for europeans

[Spam.B.gone]

first they gave us culture, then they gave us linux, now they give us some common sense
Having seen what you've been doing with the culture, we now want it back.

Redundant

[Anonymous Coward]

EU Moves Towards Single European Patent Standard

You don't need to say "European Patent" if you use the term "EU". What the hell other kind of patent standard would the EU being moving towards? EU Moves Towards Single Antarctic Patent Standard?

You clown.

Re:Redundant

[kogs]

Without the word "European", the headline is ambiguous because is could be suggesting that the EU is moving towards harmonisation with the US system (although hell will freeze over first).

Still feel clever?

not all good

[AndrewRUK]

Unfortunatly, this report, from the Legal Affairs committee, does support software patents, ignoring the advice of the Industry committee, the Culture committee, and the vast majority of the response to their public consultation on the issue. Luckily, there is still time, as it has to pass the European parliament before coming EU law. So, to all European slashdotters, please make sure to contact your MEP about it (in a coherant, non-loony way) and explain why software patents are bad.

Re:not all good

[mickwd]

I second this.

They do reply, too. I got a personal response from one of my MEPs to an email within half an hour. Not all of them are this clued-up (I'm sure not all of them even have e-mail addresses), but some of them will be.

But you don't have to email them - you can write to them, too.

If you don't know who your MEPs are, or how to contact them, go here and enter your postcode. Look for the "Your Representives" section, and click on the "More information and contact details" link.

Re:not all good

[3247]

Unfortunatly, this report, from the Legal Affairs committee, does support software patents, ignoring the advice of the Industry committee, the Culture committee, and the vast majority of the response to their public consultation on the issue.

...or everyone else who does not have any clue.

Although the European Patent Convention (EPC) says that "programs for computers" are not patentable whereas the (draft) Directive explicitly says that "computer-implemented inventions" are (art. 52), there is actually no difference:
The EPC was never meant to prevent patents on computer-implemented inventions; the clause that prevents patent on "computer programmes" simply has no effect -- patent lawyers agree that they are either "technical" (and patentable) or "non-technical" (and not patentable). Unlike the US patent system, the European patent system only protects "technical" inventions.

Patents on "technical" computer programmes are not that bad -- after all, they are technical inventions that just happen to be implemented with computers.

The real problem is that patent offices tend to view all computer software as "technical" because a computer is technical. This results in patents on algorithms, business methods, etc. that just happen to be implemented with computers.

The draft EU Directive does a lot to clarify this: It says several times that computer programmes are not technical just because they run on a computer. It also says that algorithms are not patentable and that a patent on a technical invention that uses an algorithm does not cover the algorithm itself (yeah, the Yahoo editor obviously did not read the documents; s/he even got the date wrong: 2003-06-16 was Monday, not Tuesday).
The rationale clearly says that they don't want algorithms and business models to be convered.

These clarifications will actually result in less software patents because all the bogous software patents that are not patents on computer-implemented technical inventions but on computer-implemented algorithms, business models, etc., are now so clearly outlawed by the explicit text of the Directive that every patent officer should get it.

Re:not all good

[JPMH]

Although the European Patent Convention (EPC) says that "programs for computers" are not patentable whereas the (draft) Directive explicitly says that "computer-implemented inventions" are (art. 52), there is actually no difference:

The EPC was never meant to prevent patents on computer-implemented inventions; the clause that prevents patent on "computer programmes" simply has no effect -- patent lawyers agree that they are either "technical" (and patentable) or "non-technical" (and not patentable).

Not true.

When written, the EPC's art 52 was seen as clearly excluding computer programs, provided that the patent application was directed to these objects as such (and not a combination invention, e.g. a chemical process whose input parameters are calculated according to a mathematical formula).

The EPO's Examination Guidelines of 1978 were quite clear on this:

A computer program may take various forms, e.g. an algorithm, a flow-chart or a series of coded instructions which can be recorded on a tape or other machine-readable record-medium, and can be regarded as a particular case of either a mathematical method (see above) or a presentation or information (see below). If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims. For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.

Until 1986 the EPO's boards of appeal and national courts, except in the UK, firmly rejected any claims to new combinations of generic computing equipment with calculation rules (= computer programs) in whatever form.

Unlike the US patent system, the European patent system only protects "technical" inventions.

McCarthy's amendment 3 (which was passed) starts:

"Accordingly, even though a computer-implemented invention belongs by virtue of its very nature to a field of technology..."

It is true that McCarthy's amendment 15 states that

"...inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable."

This reflects the current EPO guidelines. But almost anything which can be presented as identifiably useful counts as a technical contribution, beyond the normal working of the computer.

Thus, as the Iusmentis site summarises, "processing which affects the way in which a computer operates is technical. For example, saving memory, increasing speed, improving security, operating a user interface, configuring the operating system, coordinating and controlling internal data ... using computers instead of humans to process secret/private/sensitive data if it would increase security or confidentiality".

According to rulings on EP 0689133, even the "economical use of the resource area on the screen" is technical.

And if that doesn't cover the program, then "processing which is based on considerations of how a computer works is technical". Thus in the Sohei case a patent the EPO Board of Appeal upheld a patent for using the same input form to update two databases, namely an inventory database and a billing database, because it *implied* (but didn't actually limit itself by specifying how to do it) the handling of files containing different types of information, which is technical.

The moral is: if you can't make your new subroutine out to be technical, you need a new patent lawyer.

The draft EU Directive does a l

Re:not all good

[Anonymous Coward]

These clarifications will actually result in less software patents

I wouldn't recommend putting your grammatical errors in bold, good sir.. "fewer software patents" please.

All patents are bad!

[Thinkit3]

Arguing against software patents is like arguing against slave imports. "Intellectual property" needs to be abolished, just as slavery was.

1.1 is even worse

[$$$exy Gwen Araujo]

Patents were doing fine until Reagan changed the laws and started allowing software patents.

In other news...

[heli0]

Amazon Tuesday patented the first pan-European standard for software patents. European representatives in Brussels declined to comment on the new Amazon patent.

Re:In other news...

[appleLaserWriter]

I think it is about time to try a dictionary create on pan european patents!

I think he actually said ..

[Anonymous Coward]

The loser U.S. System, and not LOOSER
LOSERS.

Who is responsible for ?

[hoppy]

Please, may be some UK citizen could send to Mrs Arlene McCARTHY few words to tell her what they think.

Find more information about CEC & BSA at CEC & BSA 2002-02-20: proposal to make all useful ideas patentable

And information about Arlene McCARTHY including e-mail address.

Re:Who is responsible for ?

[The Mgt]

I did email her (politely) and am still waiting for a reply. I suspect I'll keep on waiting as I'm only a member of the public rather than a lobbyist for some big software company.

Re:Who is responsible for ?

[Anonymous Coward]

She answered in THE GUARDIAN:
http://www.guardian.co.uk/online/story/ 0,3605,9751 26,00.html

McCarthy about GPL: "which moreover is not "free", but is actually a different form of monopoly by imposing a copyright licence system on users."

More general information from FFII:
http://swpat.ffii.org/akteure/mccarthy/inde x.en.ht ml

Re:Who is responsible for ?

[Anonymous Coward]

Contacting her would be useless, she is completely oblivious to reasoned argument.

My suggestion is we have a revolution or move to another planet, seems about the only way we can get rid of the corrupt, sleaze-infested, backhander-taking governments we currently have.

Looser?

[Anonymous Coward]

I know I can't be the only one who first read that as the loser U.S. system!

That giant sucking sound...

[theonetruekeebler]

...is the software industry leaving the U.S. in droves for less litigious countries.

Re:That giant sucking sound...

[Anonymous Coward]

...that will tax them into the poor house while imposing such strict employer rules such that no employee can ever be fired and all employees can only work 35 hours weeks.

The giant sucking sound is air rushing into the vacuum that is your skull. Your post is complete nonsense.

Re:That giant sucking sound...

[Anonymous Coward]

The genre is too large to simply say "this is good".

Now I'm going to say something that's going to get me flamed.

Check out Kenny G. No seriously. Stop laughing.

Kenny G represents the future of Jazz, for better or worse. Soprano sax in the fore and a solid trio in the backup is the type of music coming out of the Jazz world for years to come. Take a listen to any recent Jazz album and you will find easily followable rhythms and very few solo excursions anymore.

As an art form, Jazz has essentially played itself out. This is as much a result of its maturity as it is a result of the intrinsyc drawbacks of the style. The style allows the artist complete freedom and this was exploited for years in the form of gratuitous solos and wildly off-beat excursions. There is only so far you can go with that kind of artform because eventually it all has to come back to the essential 4 4 beat and at that point Jazz loses all its magic.

It's a shame that the best American musical artform is on the verge of dying (BSD trolls begone!), but there's simply nowhere for the music to go except into Kenny G-like easy listening, no chance taking, simple, boring, and unsatisfying albums.

It's kind of like being an Altair aficianado. The only thing you can do is look to the past because they just don't make what you want anymore.

Re:That giant sucking sound...

[larryleung]

WTF?!?! The software industry LOVES patents. Its gives them control over their intellectual property and hence more incentive to develop new software.

If patent laws are *too* strict, it'll be hard for companies to remain competitive against the hordes of smaller companies ripping off your ideas and selling a cheaper solution.

Re:That giant sucking sound...

[OeLeWaPpErKe]

Which obviously is a very good deal for 99,9% of the people which are employees.

Remember why businesses exist in the first place (subtle hint as you're probably american, it's NOT to make a profit)

Re:That giant sucking sound...

[jmv]

...that no employee can ever be fired

Can you give some sources for that? Sorry, never heard of these laws.

all employees can only work 35 hours weeks.

That's a French law, AFAIK all EU countries have different laws. Besides, I think 35 hours/week is a good idea. Creates jobs, employees more productive, employees have more free time, which means they have more occasion to spend money and make economy run.

Re:That giant sucking sound...

[Anonymous Coward]

...that will tax them into the poor house while imposing such strict employer rules such that no employee can ever be fired and all employees can only work 35 hours weeks.

The giant sucking sound is air rushing into the vacuum that is your skull. Your post is complete nonsense.

What about: ...that will ask higher taxes so that investments can be made in healthcare, education and social sructure, and that will use those taxes to create a better living environment, and a place where people don't have to work for 50 or 60 hours to make a living, A place where people can actually raise their kids. Happy people with more job security are better workers, and they don't have a tendancy to cause trouble.

Higher taxes means higher tax incomes, which, ofcourse if spent well, means a better living and working environment, and, as a bonus, means a diminished corporate grip over society.

Re:That giant sucking sound...

[Anonymous Coward]

>>Remember why businesses exist in the first place (subtle hint as you're probably american, it's NOT to make a profit)

It is to make a profit. You think this is some social laboratory where people can build a business to feed the lazy? Sure it is to provide a product/service, but it must do that PROFITABLY otherwise it won't last long. cf., dot-com boom.

Re:That giant sucking sound...

[mav[LAG]]

Actually it was an American who said it best:
"You should be in business to improve the lives of those around you" - John Paul Getty.
I like that. I've studied him and he really did think like that - business for him was for improving the lives of family, friends, employees and business partners. He was damn good at it too.

Re:That giant sucking sound...

[gad_zuki!]

Funny, American companies in the EU have no problem keeping their divisions profitable within the EU's pro-employee and long vacation laws.

There's nothing magical about either system, there are just different ways of doing things. A good business adapts to its environment be it the market or local labor laws. A bad business is one that can't adapt and "needs" more government-mandated "pro-business" legislation like the US habitually gives out.

Re:That giant sucking sound...

[d_i_r_t_y]

If patent laws are *too* strict, it'll be hard for companies to remain competitive against the hordes of smaller companies ripping off your ideas and selling a cheaper solution.

yeah, you're right - then they might have to actually compete on the merit of their implementation.

if all software patents evaporated tomorrow, what would it *really* change? businesses would still create software, it would just have to be *better* to thrive in the marketplace.

Re:That giant sucking sound...

[brunes69]

A business could last just as long making 0 profit, aka break even. Millions of not-for-profit organizations do this.

Re:That giant sucking sound...

[larryleung]

Implementation is simply a matter of time and programmers/monkeys. The real innovation is the patentable ideas about system design.

If software patents evaporated tomorrow, what motivation would software companies have to release stuff quickly? We'll only see incremental changes and big design changes will be kept under wraps for years until they're fully mature, long enough so that no competitor could justify the effort to reproduce the functionality to enter the market. This will ensure even bigger monopolies and less compatibility. In fact, incompatibility will be their only shield left.

What we have now, though imperfect, is at least better than this.

Re:That giant sucking sound...

[Anonymous Coward]

Maybe, but did you have to beat them with an even more nonsensical one? 50% tax (and that isn't a huge amount more than, say, New York) is still easier to take than being sued every ten minutes for patent infringement.

Re:That giant sucking sound...

[d_i_r_t_y]

If software patents evaporated tomorrow, what motivation would software companies have to release stuff quickly? We'll only see incremental changes and big design changes will be kept under wraps for years until they're fully mature, long enough so that no competitor could justify the effort to reproduce the functionality to enter the market. This will ensure even bigger monopolies and less compatibility. In fact, incompatibility will be their only shield left.

i completely disagree - companies would be forced to constantly innovate and improve in order to differentiate their products in a *much* more competitive environment, rather than lazily resting on their laurels because they have completely patented an area out of reach of other companies. the US patent system makes lawyers mre valuable than inventions.

of course there must be *some* level of intellectual property protection, but it should be much more difficult to obtain, and much more limited in duration. patents aren't a business' only recourse to IP management - there is also 'trade secret' (ie: don't tell anyone). the secret recipe that makes coca-cola taste like coca-cola is a trade secret - you think coca-cola's business has been restricted because of their lack of patent protection?

A distinction without a difference

[TechLawyer]

So rather than claiming a business method, European applicants will simply claim software useful in implementing a business method, while never actually using the words "business" or "method." For a skilled practitioner, the new EU guidelines don't seem to put up much in the way of a barrier.

Re:A distinction without a difference

[cyril3]

A decent patent examiner will see that it is a business method patent claim.

But then the distinct lack of decent patent examiners is what got us into this mess in the first place.

Re:A distinction without a difference

[Groote Ka]

You are right. This is what happens indeed in practice, I have discussed it with colleagues a couple of times.

But nevertheless, it surely limits your claims.

Re:A distinction without a difference

[JPMH]

A decent patent examiner will see that it is a business method patent claim.

And then he/she will approve it anyway.

A patent on a business method will be approved if some technical considerations or a technical effect is involved in the invention.

See http://www.iusmentis.com/patents/businessmethods/e poexamples/ for examples.

Unlike some national patent offices, the EPO has no outright bar on computer-implemented business methods. This directive will force its interpretation on the rest of Europe.

Second System Effect?

[Anonymous Coward]

Now I'm going to re-read Brooks . . . and tremble.

BIG Mistake

[NigelJohnstone]

Cute how its dressed up, but its telling that its the big players that want to lock themselves in with Patents who are backing this.

We had the most innovative time when there were no patents and lockins. Now the software market is dead, because the OS vendor locks the market down. Giving them more lock down tools in the form of patents is death for applications software.

No applications are developed, nothing new is in the market and it has nothing to do with patents, and everything to do with market lock.

Re:BIG Mistake

[larryleung]

We had the most innovative time when there were no patents and lockins. Now the software market is dead, because the OS vendor locks the market down. Giving them more lock down tools in the form of patents is death for applications software.

Um... last time I checked we still have a decent market for software. Innovation is still happening, just at a slower rate as the industry matures as expected. Companies are generally immune towards any "lockdown" due to licensing agreements.
While I understand your feelings about patents, your conclusions are unjustified.

Re:BIG Mistake

[Anonymous Coward]

That industry "maturation" could just be that the industry is bogging down in legal and bureacratic paper-shuffling, like other "mature" industries.

non-loony?

[Thinkit3]

In other words, not ranting "Information wants to be FREE! Ban IP!"

Re:non-loony?

[AndrewRUK]

Yeah, pretty much. Putting across a well-reasoned argument as to why software patents are bad is the way to get the message through to the politicians, not ranting at them.
(OK, so big wads of cash are the best way to get messages through to politicians, but failing the that...)

Re:Something Freudian about the U.S. Patents Offic

[Anonymous Coward]

Am I the only one who misread this as the loser U.S. system?

Nope, you certainly weren't the first one, it took me quite a few re-reads to get it, not because I dindn't understand it, but because since the world is getting madder over time:

You know, when the germans don't want to go to war, the frechs call the americans pricks, the best rapper is white and the best golfer is black ... you can expect anything !!!

Then why should machines be patentable?

[siskbc]

I think they are approaching this from a better angle. I still disagree with the general notion of patenting algorithms as such. I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered.

I'm no fan of the lovely US patent system, but I don't know about algorightms being a "mathematical truth" any more than a functioning machine is a "physical truth." One is an implementation of logic, one of physics. Yet no one would fight a patent on a new machine that does something cool. Similarly, I would argue for algorithms, assuming they meet all the other patent standards.

Note that doesn't mean I'm going to grant a patent on something like the for-loop, but I think any specific, novel, nonobvious means of solving any problem should be patentable. So if you invent a new way of approaching an encryption problem, cool, patent. But saying one-click is a patent, that's an end, not a means. No patent.

Re:Then why should machines be patentable?

[dtolton]

As I stated, there is room to argue on this point. Most of the difference hinges on definitions. Such as defining the difference between an act of Creation and an act of Discovery. Is it an act of observation, or an act of Imagination? There are some things that if that person had not lived, and had not produced those works (Shakespeare, Mozart) the world likely never would have benefitted from them. There are others that we would have regardless (Electricity, Projectiles). The problem is with those things in between these two extremes. It's not 100% clear cut which way it should go in some cases. I can understand allowing limited patents on certain algorithms, however others are ludicrous. Thus my problem on simply allowing patents on algorithms. It depends greatly on the algorithm and whether or not it was truly an act of Creation or of Discovery.

What I do like about their version of this law is that it has to be Novel, pushing those patented towards the more rigorous side of the spectrum.

Re:Then why should machines be patentable?

[Anonymous Coward]

Yet no one would fight a patent on a new machine that does something cool

That's an invalid assertion (note: I was once a mechanical engineer). People fight patents all the time in industries that patents are applied to. The only real winners are the lawyers.

It disgusted me, when, as a naive teenager in University, I discovered that all the coolest stuff in the mechanical engineering field was locked up in patents by big oil companies. I was being taught how to build the techniques for turbine-engine cars, safe and clean renewable energy machines (windmills etc.), and none of it was going to happen in my lifetime (20 years seemed like a lifetime, anyway), because big companies had bought up the patent rights for all the cool stuff and squashed it.

Patents are a tool of control. The Big Lie is that they are to reward the inventor. They don't - they're there to control the inventor, and keep progress happening at a sedate pace so that dirty old men can keep steering society in the directions they want.

Good for the EU

[Anonymous Coward]

More government regulation can't be bad.

A better system the in the US....

[Zemran]

That must have been hard to sort out... :)

Re:Something Freudian about the U.S. Patents Offic

[Anonymous Coward]

Me too, i didn't see it correctly until I read your comment

That's how I read it at first

[Trelane, the Squire]

lol. did a double take, but chalked it up to mistranslation or something. I guess we know which way I lean on this subject...

Re:Something Freudian about the U.S. Patents Offic

[Anonymous Coward]

no

Re:Something Freudian about the U.S. Patents Offic

[Nighttime]

Nope, I'm so used to auto-correcting bad grammar and spelling on /. I thought the editors were up to their usual high standards :)

Re:DID YOU RTFA?!?

[Shadow Wrought]

I think what he meant was, "You are plan has failed. All your patent are belong to us."

Poor economics

[donnz]

There must be a tonne (ton) of PhD thesisss proving what a drain on the world economy patents really are. The more I think about it the less I can see *any* reason for patents. They are an artificial drain in the economy, encourage monopolisation and generally an option that favours huge corporates over the innovative "little" guys.

Are you an ideas person? Go sell that skill to a company that needs ideas, that's what the rest of us do, you don't need patents to make a buck.

The idea of patents encapuslates two mistaken ideals:

1. "The American Dream" - you get to make a shit load of money for nothing.

2. Professionals (read lawyers) are more than "just" about selling services - no no, we sell ideas.

On point two, I should state I am proud to be selling my services. If it makes my clients a lot of money, maybe they'll pay me a lot to keep my services. In the end, why should we be considered better (or worse) than toilet cleaners who do an equally valuable job.

Re:Poor economics

[RandyF]

Patents are necessary, just not for software.

Are you an ideas person? Go sell that skill to a company that needs ideas, that's what the rest of us do, you don't need patents to make a buck.

Without a patent, there is nothing to stop that big company you just showed your idea from taking it and running with it, leaving you in the dust.

Patents are intended, much like copyrights, to protect the thinkers so that they can have a reasonably protected profit so that they are free to think up more ideas. Patent lifespans are short intentionally.

That is not to say, however, that a patent length is reasonable for software. In an industry that considers 1 year way out of date and irrelevent, 6 months would be a fair bargain.

If we could strike such a deal, I would be all for software patents. It gives the originator a fair enough time to profit before the innovation is public domain.

'nuff said...

Re:Poor economics

[donnz]

Yeah, that's nice theory but I don't think practice has born it out. It is very expensive for the little guy to raise and the defend patents world wide. Dyson spend millions doing so on their "bagless vacuum cleaner", but really it is a distraction from the faact that they come up with nice designs that people want to by. I believe it is a distraction to their company and ultimately holds back innovation.

Just look at what gene patenting is threatening to do to innnovation in that field. Look at how it is placing food production in the hands of a very few massive corporates.

So theory, nice but the reallity is that most of the time patenting is not an available option but things still get made and progress progresses.

My big fear is that organisation like the WTO start enforcing patents world wide will be yet another rod for the 1st World to beat the rest with.

Changing Patent law is only part of the solution

[retto]

An equally large, and relevant, problem is the lawsuit culture present in the US. The reason everyone is trying to patent every possible idea no matter how abstract is that it our legal system tolerates lawsuit after lawsuit after lawsuit. Instead of providing relief for a party that has been wronged, it has become a lottery, where the price a patent application could win you a big cash settlement.

Now I believe that the current patent system is badly broken and in need of a massive overhaul, but how much of the change should be made in the patent system, and how much in the courts?

US patent system changing?

[Anonymous Coward]

I'm afraid that the US patent system will never change for the better. Less restrictions = more applications = more grants = more money. They earn money like there is no tomorrow (safe assumption), why would they want to earn less?

No - there is NOTHING sane about this!

[Sanity]

I have been a software engineer for years and even I have no idea what is meant by "technical contribution" - and if you don't know what it is, how can anyone say what it isn't?

This is a wide-open door through which even the most rediculously obvious software patents could (and therefore will) slip.

Please please please don't let yourselves think that this is anything other than the EU getting a patent system open to virtually all of the abuses demonstrated in the US.

I just sent the following to my MEP, find your MEP's email address and contact them NOW before it is too late (people in the UK can find their members here)!:

Ms Doyle,

You may recall our recent discussion concerning the dangers of software
patents for European innovation and competitiveness in software. Apparently,
the Legal Affairs Committee has now recommended that patents on software
are to be permitted within the EU - while only paying lip-service to the
massive threat they present. This will be a collossal blow to smaller
European software developers as they will be unable to compete with large US
corporations in the patent land-grab which is sure to follow.

My question is - what problem are they attempting to fix? Software
innovation has been just fine without software patents in Europe. The Linux
computer operating system, which currently runs more web servers than
Microsoft's Windows software, was developed by volunteers donating their time
freely. This kind of effort is jeprodised when large software companies like
Microsoft can use patents on trivial and obvious software processes to crush
these altruistic development efforts, and Microsoft has stated that they are
willing to do so.

It is insufficient to pay lip-service to the problem of patents on trivial
and obvious techniques, I want to know how exactly this will be prevented.
Certainly the lesson of the United States is that the patent office will be
poorly motivated to deny patents on trivial software processes, leaving it up
to the courts - a process that is much too costly and time-consuming for
small companies in such a fast moving industry.
I realise that you are not directly involved in this process, and I am not
intimitely familiar with the internal workings of the European Parliament,
but as the CEO of a software company with offices in Leinster I feel that you
are the appropriate person to whom I should address my concerns.

If you could refer me to someone more appropriately positioned, I would be
extremely grateful,

Kind regards,

Ian Clarke
CEO Cematics LLC

Re:No - there is NOTHING sane about this!

[samhalliday]

hope you dont mind me plagerising most of your letter (spelling corrected, names/situations changed) to send to my local scottish MEPs. one of whom (Professor Sir Neil MacCormick) was very much on our side (better remeber to vote for him next time..)

there is more MEP info here for people in the UK, and search the same website for rest of europe. i cant believe this proposal passed parliament...

Re:No - there is NOTHING sane about this!

[samhalliday]

anyone else think most of these MEP email addresses are dud? they are all AT europarl.eu.int, which isnt even a valid domain...

Re:No - there is NOTHING sane about this!

[Sanity]

My MEP - Avril Doyle, email: adoyle[at]europarl.eu.int, responded within 24 hours to my email. On the down side, she was mainly saying that it wasn't really an area she knew much about and offering to refer me on to someone else.

Re:No - there is NOTHING sane about this!

[samhalliday]

interesting. i cant DNS lookup that domain. i have had a few bounces already from a few of the addresses i sent to (guess this is what spammers feel like), but none for the europarl.eu.int addresses yet. heres hoping they get through.

i also sent emails to my home (norn-irish) MEPs as well... id be surprised if they even had the brains to click the power button on their computers, let alone check their email...

Re:No - there is NOTHING sane about this!

[Anonymous Coward]

You recon that it's not valid. Worked for me....

C:\>nslookup
Default Server: abc.internal
Address: 192.168.1.8

> www.europarl.eu.int
Server: abc.internal
Address: 192.168.1.8

Non-authoritative answer:
Name: pericles.europarl.eu.int
Address: 212.190.72.70
Aliases: www.europarl.eu.int
>

Re:No - there is NOTHING sane about this!

[mrogers]

Many thanks for the link - I've emailed London's MEPs expressing my concern. Unfortunately I suspect the biggest difference it makes will be to the size of my 'Sent' folder. Ho hum.

good grief

[Anonymous Coward]

US is starting to look like some laboratory to determine what may be toxic to a nation. EU definitely pulled that one from current events here.

Why must our leaders be so stupid? They're supposed to be the cream of the crop, the most intelligent of us. But here they are, acting like so many used car salesman transported to a stratospherically powerful positions, accepting and honoring bribes and all sorts of other mindless crap. God help us.

Loser U.S. system?

[Anonymous Coward]

I first read:
"The European law sets the right benchmark rather than the looser U.S. system"as:
"The European law sets the right benchmark rather than the loser U.S. system"

Re:Loser U.S. system?

[Anonymous Coward]

Jaysus, you are about an hour late.

Read some posts before you say the same fucking thing over and over.

Amen.

[HansKloss]

"We don't want to arrive at a model where in the U.S. everything under the sun can be patented," said Ilias Konteas of the Union of Industrial and Employers' Confederations of Europe

Not good

[DGolden]

This is not actually good news, despite the spin. Software patents are absurd, and this still basically hands Big American Corporations (TM) the European software industry on a plate.

On the sorta-plus side, in the long term, the very concept of I.P. might be pushed closer to collapsing under its own weight. The USA and now the EU are deluding themselves if they think that China will continue to honour Western I.P. laws for ever. To echo a post on /. a while back - I find it scary that the West is busy building castles of I.P. in the sky, while its native manufacturing base is dissolved. When all the West "has" is information,less than pieces of paper and infinitely copyable, and the billions in India and China have all the factories, then we'll see how much real value I."P". has.

Re:Not good

[eurostar]

"the EU are deluding themselves if they think that China will continue to honour Western I.P. laws for ever"

"Although about 3 million computers get sold every year in China, but people don't pay for the software," he said. "Someday they will, though. As long as they are going to steal it, we want them to steal ours. They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade.

http://news.com.com/2100-1023-212942.html?legacy =c net

Re:Not good

[Anonymous Coward]

Collecting from a state with 4 times your population and a nuclear arsenal may be tricky...

Business methods ARE patentable

[infolib]

The Yahoo story and the slashdot blurb have both been (intentionally) misled. Under this directive anything "technical" can be patented. Programs running on a computer are technical. Business methods implemented "with a computer network" are technical.

In the future, european businesses will compete, not on programming, but on paying patent lawyers. Remember: just because you wrote a program yourself doesn't mean you'll be allowed to distribute it. The result? Punishing innovation.

Re:Business methods ARE patentable

[3247]

The Yahoo story and the slashdot blurb have both been (intentionally) misled. Under this directive anything "technical" can be patented. Programs running on a computer are technical. Business methods implemented "with a computer network" are technical.

Well, you seem to have found the problem. But you obviously have not read the report from the Parl. Committee [PDF].
That report says so often that a computer programme shall not be patentable just because it runs on a computer that you could call it paranoid about that.

Re:Business methods ARE patentable

[Halo1]

But on page 18 of the report, second paragraph near the end, it says "The rapporteur's amendments would also very clearly exclude the grant for patents for noninventive business methods." (emphasis mine). So it seems he does/did not intend to banish patents on business methods in general at all.

MOD PARENT UP

[ShieldW0lf]

The voice of reason

Very misleading article

[sl956]

The European Commission has proposed to override the current clear and uniform European patentability rules (Art 52 EPC: "mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions") and replace them by a confusing set of nationally implementable rules which authorise patenting of algorithms and business methods, as it has been practised at the European Patent Office (EPO), openly since 1998 and more or less covertly since 1986.

The "European Parliament committee" cited in the article is the European Parliament's Commission on Legal Affairs and the Internal Market (JURI). Some members of this comittee submitted amendments to the European Commission's software patent directive proposal. While some Members of the European Parliament (MEPs) are asking to bring the directive in line with Art 52 EPC so as to clearly restate that programs for computers are not patentable inventions, another group of MEPs is endorsing the EPO's recent practice of unlimited patentability, shrouded in more or less euphemistic wordings.

What happened Tuesday is the vote of some pro-software-patenting amendements by the JURI. Theese amendments will now be presented to the plenary of the European Perliament for decision during the first week of either july or september.

It's definitely VERY BAD news.

This site summarizes the situation and the efforts from all around Europe to fight software patenting.

Toasting to the end of free software

[infolib]

Yes, I know people who met tonight for that very purpose. I was too far away, and anyway, I didn't feel like.

After all, when patents claiming all automatized medical diagnosis got through the old system (when illegal), how would you defend yourself against lawsuits now that every idea somehow involving a computer is explicitly patentable?

Not to mention that all commercial developers will have to pay IBM et.al. to avoid million-dollar-lawsuits. No wonder that innovation dwindles

Some information on patents

[f97tosc]

Since I am trying to patent some stuff right now, I actually know a thing or two about patents. I'll try to straighten out some of the questionmarks and misconceptions that seem prevalient.

In Europe, the patents can be issued for the entire union from the central office. This is much more expensive than in the US, primarily because everything has to get professional, technical transaltions into three langauges. However, even though the patents are issued for the entire EU, they are actually enforced locally in each country. Different European countries have different criteria and standards, the same patent may very well be ruled to apply in one country but not in another. I think the article deals with some guidlines regarding software and business methods; I don't believe it will change the overall picture and it should be seen in that context.

Some quick points about software and business methods in the US. In general, for these to be patentable, they must fulfill the following (these are some of the important conditions in lay mans terms):
-It must be new, in other words no records that anyone has ever done it before
-It must provide a tangible benefit - pure mathematics or very abstract and general algorithms do not work
-It cannot be obvious, even to professionals in the field
-The inventor must demonstrate that he or she actually knows how to implement it (preferably by doing so)
- The patent is only valid for the implementation that the inventor describes

These are actually quite reasonable conditions, wouldn't you say? I have not read the infamous one-click shopping patent, but note that generally speaking it is not possible to patent "shopping by only one click", you have to describe how you do it, and the patent is only valid for that implementation. Of course, sometimes it is possible to be quite general in the description, such as "save the customer's info in a memory, recognize customer by a cookie, initiate transaction based on saved data when customer clicks shopping button". On top of that the one-click patent is questionable from the obviousness criterium.

I wish to point out, however, that the set of patents that get discussed on Slashdot are the examples of extreme outliers when it comes to obviousness and generality. Frequently they are also misunderstood and exagerated, either by the original magazine, the story submitter or both.

For example, a few weeks ago there was a story on Amazon patenting selling used items next to new ones. A dozen people got 5, insightful ratings for pointing out how crazy this was. In fact, the patent only covered a specific technique of soliciting new sellers (or something similar).

Tor

Re:Some information on patents

[angle_slam]

You are correct. /. is always over-reacting to anything involving patents and the fact is, most posters know nothing about patents anyway, so why are they commenting.

Re:Some information on patents

[angle_slam]

These are actually quite reasonable conditions, wouldn't you say? I have not read the infamous one-click shopping patent, but note that generally speaking it is not possible to patent "shopping by only one click", you have to describe how you do it, and the patent is only valid for that implementation.

Here is the one-click patent. It's pretty broad:

1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.

Re:Some information on patents

[f97tosc]

Here is the one-click patent. It's pretty broad:

1. A method of placing an order for an item comprising:
under control of a client system,
displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system, receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request;
and generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information;
and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.

When you see a main claim with "comprising" followed by a number of points, then this means that all the points must be fulfilled for the patent to hold. In other words, if you can do a single point differently then you are free implement it without infringing. But yes, it is pretty broad.

Tor

Re:Some information on patents

[Groote Ka]

Almost correct:

In Europe, the patents can be issued for the entire union from the central office.

The European Patent Office is an intergovernemental office, set up by the European Patent Convention. All EU member states are a member, but Switzerland and a couple of others as well (most of them will be EU member soon). But please not that the EPO is not bound by the EU.

This is much more expensive than in the US, primarily because everything has to get professional,

Almost correct, you need a professional representative (patent attorney) when you live outside the territory of the EPC.
However, I recommend you do it anyway, unless you are absolutely sure you do it right

technical transaltions into three langauges.

You need a translation of the claims in three languages; English, French and German, upon the publication of a granted patent. This takes about five years. When you have not made any money from your patent and you won't make any for the next three years, you'd better drop it, saving you the cost.

When you go national with a granted patent, you need a translation of the full specification in all languages of countries you want to have a patent. That is very expensive, same goes as with the translation of the claims.

However, even though the patents are issued for the entire EU,

They are not, they are only issued for countries you indicate.

they are actually enforced locally in each country.

Correct

Different European countries have different criteria and standards, the same patent may very well be ruled to apply in one country but not in another.

Correct, but the variation is usually not that large. Most important is too look for a fast and competent court, in UK, Germany or Netherlands. *Don't* go to Italy or Belgium, unless you want to launch a 'torpedo' (it's a trick to stall patent lawsuits; partially disarmed, but they may still be effective).

Solution

[CowardX10]

I move that those of us wishing to be free from patents move to an island. We will call this island ZERO ONE. Free to innovate and work as a collective, we will then quickly outproduce the rest of the world in terms of technology.

This potentially may end badly, but we'll deal with that later.

Oh no

[CausticWindow]

Chilling effects for Europe. This must be bad indeed. They have no sense of personal freedom. They are drones. They have no sacred to God constitution like ourselves.

Poor bastards.

Medical products

[tamyrlin]

What about companies developing drugs? The development costs are usually very large. But the final product is easy to reproduce. I have no good idea of how to encourage companies to develop this unless they get an assurance of profit in the form of a patent.

How do you propose to deal with that without patents? I would be surprised indeed if an open drugs community would be able to surpass large corporations in this matter. Upgrading a kernel is one thing, alpha-testing a drug is not quite the same thing... :)

But I agree with you in the case of software patents for example.

Re:Medical products

[donnz]

Ok, well seeing as my karma is slipping away due to a "flamebait" mod I'll carry on with my thinking :-)

I see the drug companies as similar to the bread making companies. Both have a recepie, both make money out of baking and selling the outcome. One does this without the need for patents. In fact, asprin tablet makers still manage to make lots money and stay in business despite there no longer (or even ever) being patents on asprin. So, in the end I think that the "drugs companies" issue is a bogus arguement. I also notice that the drug manufacturers are amongst the biggest an most monopolistic of companies. We end up paying huge premiums as a result of this either to health insurance companies or in taxes to our health services.

If the FDA wanted to level the playing field they could do this by ensuring that any new *brand* of drug has to go through trials and test, just like the original.

Sorry to bore you all, come on give me another flamebait (idiot moderator!).

Re:Medical products

[cyril3]

Both have a recepie, both make money out of baking and selling the outcome

Do you think the drug companies have a book somewhere with all the drug recipies in it and every now and then someone thinks 'I wonder if there is a recipie for a drug that enhances erections' and pick out viagra and says 'I saw it first so i'll make this one' to all the other drug companies and they say 'ok, fair enough, i wonder what else is in the book that i can make, say a recipie for an anti cancer drug, yeah that'd be good'

I also notice that the drug manufacturers are amongst the biggest an most monopolistic of companies

A monopoly usually implies one company. Given there is more than one drug company there can hardly be a monopoly. Perhaps you mean an oligopoly. or cartel. Possibly but less clear. Many new and innovative drugs are created by small companies all over the world and successfully commercialized by them without the big pharma companies.

they could do this by ensuring that any new *brand* of drug has to go through trials and test, just like the original.

Yeah, that would make them cheaper.

come on give me another flamebait

Flybait more like it.

Re:Medical products

[donnz]

Now you will explain to the class why Microsoft was found guilty of abusing its "monopoly" depsite the fact that other people make OS's and produce internet browsers. There is a definition, it is looser than you seem to know about most of the big pharmaceuticals fit the generally accepted definition.

Re:Medical products

[cyril3]

OK if you insist.

Monopoly A situation in which a single company owns all or nearly all of the market for a given type of product or service. This would happen in the case that there is a barrier to entry into the industry that allows the single company to operate without competition (for example, vast economies of scale, barriers to entry, or governmental regulation). In such an industry structure, the producer will often produce a volume that is less than the amount which would maximize social welfare.

From InvestorWords.com. There are definitions of pure monopoly that say a single entity only can operate in a market but then you start to argue about what a market is. And as soon as a competitor enters there is no monopoly by definition. The above definition accepts that a single entity can be so large as to effectively operate without competition even though there are other suppliers. A key concept in MS case was the abuse of monopolistic market power to prevent competitors from either entering the market or staying in it. So in terms of this definition MS was a monopoly and did abuse its market powers. The above definition does not allow more than one dominant player and so with 4 or 5 major pharmas it is hard to call them all monopolies.

As I suggested it might be said that they form a cartel

A group of companies or countries which collectively attempt to affect market prices by controlling production and marketing. Illegal in the U.S. also called trust.

or that the industry is an oligopoly

A market dominated by a small number of participants who are able to collectively exert control over supply and market prices.

but given the number of big pharma enitities and their diverse ownership I personally don't think so.

So now you know.

But don't worry too much. Just use 'cartel' next time you abuse them and everyone will mistake you for someone with an education.

Re:Something Freudian about the U.S. Patents Offic

[SphynxSR]

I was getting ready to respond to it. I was going to say "um, dick!". But then I read it just before I hit reply. Very glad I did that.

Typo...

[MadCow42]

That should read:

'The European law sets the right benchmark rather than the loser U.S. system,'

MadCow.

Americans are barbarians

[Anonymous Coward]

American are the new barbarians. Every country that uses juridic systems based in roman system are more civilized.

Re:Something Freudian about the U.S. Patents Offic

[vmp17]

Nope

Well good

[autopr0n]

I don't see why people are in such a tizzy over software patents around here. "They can be reduced to a mathematical formula!" you cry, but so what? Name something patentable that can't, which can be reduced to formulas describing the shape and motion.

European-developer-HOWTO

[infolib]

1) Make sure you don't infringe patents, like
"Use of hyperlinks in a computer program for an automation application and programmed computer for such an application"
"Method and system including a server, client-terminal, computer and computer program, delivering sound data"
"A computer system and a program install method thereof"
2) When you've found the 100 or so patents your program-to-be infringes, get a deal with all the inventors. (If some of them are slippery, you can probably "invent around" their claim in a couple of months)
3) Pay IBM for not starting a lawsuit you can't afford
4) (Minor step) Write your program
5) Sell it (hoping you won't be victim of a submarine patent)
6) PROFIT!!! (for your lawyer)

Nahhh, on the other hand, just drop developing, and become lawyer yourself (or take advantage of our generous social system, if being a "productive member of the society" is not your cup of tea)

Re:European-developer-HOWTO

[Groote Ka]

You missed the point by about a Parsec.

1) Make sure you don't infringe patents, like [please check OP]

These are patent applications, not granted patents. You don't have to pay (yet), only when they will be granted. And quite some stuff is rejected by the European Patent office.

2) When you've found the 100 or so patents your program-to-be infringes, get a deal with all the inventors. (If some of them are slippery, you can probably "invent around" their claim in a couple of months)

In Europe, the right to a patent application is with the applicant, not with the inventor (this only goes for the US). This may be the inventor, but usually is a company. A design around is a good idea, but try to consult your patent attorney.

3) Pay IBM for not starting a lawsuit you can't afford

EUR 50.000 is a lot of money, but with a good business, you can afford. And it is the top of what you need for a lawsuit in Europe. As a bonus, you get a competent neutral judge who is specialised in patent cases (well, in most cases, as a lot of lawsuits are done in UK, Germany and NL).

4) (Minor step) Write your program

ok, I understand

5) Sell it (hoping you won't be victim of a submarine patent)

There are no submarine patents in Europe, everything is published a year and a half after the first filing.
Furthermore, submarine patents are out in US as well, when filed after July 1995 and when the inventor want to file outside of the US as well. Besides that, patent duration in US is 20 years after filing date in the US. Keeping your patent submarine for 20 years leaves you with no patent at all.

6) PROFIT!!! (for your lawyer)

Yes, bring all your money to me. IANAL, I am a patent attorney. My tariff is even higher, but as an MSc, at least I know what I am talking about.

Re:European-developer-HOWTO

[infolib]

These are patent applications, not granted patents.

Ok, didn't know that. Not that it changes anything. It's stupid that otherwise productive persons have to dig through such a pile of crap before they go to work. (Note that I didn't pick these examples specifically, they're a pretty random sample of the search results for "computer program")

In Europe, the right to a patent application is with the applicant, not with the inventor

No difference to the developer. He's still wasting time and money instead of developing.

A design around is a good idea, but try to consult your patent attorney.

No, it's not a good idea. It means the developer will have to spend time building a stupid kludge instead of just using the simple solution. And I definitely think he should spend his money on pizza and paragliding rather than paying some shaman to chant magic spells against the evil spirits. This advice is of course wrong from a business perspective, but only because we have stupid laws.

EUR 50.000 is a lot of money, but with a good business, you can afford. And it is the top

Ok, cool, we'll leave all development up to the "good businesses". It's just pretty sad that we lose the vitality of an industry where everyone with a computer in a basement has a chance to start out small to become a "good business" some day. Not to mention free software - about the only competitor to Microsoft they haven't killed. (Till now)

You also neglect to mention the cost if the court actually finds against the developer. IBM has 10^N patents, and if I annoy them, they're bound to find something infringing. On second thought I'd rather settle.

As a bonus, you get a competent neutral judge who is specialised

Oh, i see. We could have made the developers pay obscene amounts of money to argue in front of a nitwit bastard. By royal grace we shall grant them the opportunity to pay a merely painful sum for appearing before a neutral specialist. Woot.

There are no submarine patents in Europe, everything is published

Ok, I think we're using "submarine" in two different senses. I don't doubt that your usage is the right one. I meant patents that are somehow overlooked, and where the holder simply waits for infringing products to become really popular before he pulls the gun.

Yes, bring all your money to me. IANAL, I am a patent attorney. My tariff is even higher

Thanks for telling me, I feel much better now.

as an MSc, at least I know what I am talking about.

SARCASM OFF: Good. I'm grateful that your spend your time sharing some of that knowledge. Your perspective is not that well represented on Slashdot, so I've "befriended" you to help me notice what you're saying.

Now, let's get at the root of the issue at hand: do you really think software patents are useful to society?

What *is* invented?

[autopr0n]

I don't think algorithms are invented any more than mathematical truths are invented, rather they are discovered.

Well, every invention is just a 'discovery' in some sense. I mean, take for example child-proof caps for medicine. Someone 'discovered' there was a way to make a cap that wouldn't open unless pushed. Someone 'discovered' that making a tire in a certain shape would pull water off the ground and make driving safer. Someone 'discovered' that you could setup transistors in a certain way to make double data rate DRAM. All of these are discoveries as much as something like realizing that you could delete audio information that would be filtered out by the brain as a way to save space.

The important thing in my mind is to filter out the 'obvious' things from the truly innovative. It's 'obvious' to use base-64 encoding in DNS for international domain names. 1-click shopping is 'obvious', etc.

Maybe not

[f97tosc]

...is the software industry leaving the U.S. in droves for less litigious countries.

but...

...you can still develop IP-incompliant software for less litigous countries in the US

...you can still develop IP-compliant software for the US in less litigious countries



Software development is a global business. Changes in one market affects development everywhere, not just developers that happen to live in that market.

Tor

Oh please

[autopr0n]

...is the software industry leaving the U.S. in droves for less litigious countries.

No, that's actually the sound of U.S. software jobs going to places where coders go for $9/hr.

Anyway, your comment doesn't really make all that much sense. Software patents would be beneficial commercial software companies that produce things that haven't been thought of before, but could cause problems for open-source re-implementation.

Re:Oh please

[Anonymous Coward]

$9 an hour?!?! I'm a coder in the US and would kill for more than my current $7 an hour.

Make like Big Oil

[Anonymous Coward]

Of course Amazon could ask Bush to go bomb them!

All evidence to the contrary

[werdna]

This is a wide-open door through which even the most rediculously obvious software patents could (and therefore will) slip.

This is clearly hyperbolae. The parade of horribles didn't happen in the U.S., it is unlikely to happen in the E.U. The U.S. patent office finally rejects hundreds of applications in software arts every day, and will continue to do so.

Nothing in the EU proposal permits (and the law actually precludes) the allowance of a patent claim, where the differences betweeen the claim and the prior art would be obvious to a person of ordinary skill in the art.

Re:All evidence to the contrary

[Sanity]

This is clearly hyperbolae. The parade of horribles didn't happen in the U.S., it is unlikely to happen in the E.U. The U.S. patent office finally rejects hundreds of applications in software arts every day, and will continue to do so.

You are trolling right? If not, WAKE UP!! There are US patents on virtually every trivial aspect of software development, to the extent that IBM can (and has) gone to companies and essentially said "you are probably violating one of our patents - pay up!". See here for some examples.

Nothing in the EU proposal permits (and the law actually precludes) the allowance of a patent claim, where the differences betweeen the claim and the prior art would be obvious to a person of ordinary skill in the art.

In theory, yes, but in practice the patent office is poorly motivated to deny patent claims, leaving it up to the courts to sort it out. Only the largest software companies then have the resources to fight it out in court, and typically the big guy wins just by virtue of stamina.

Re:All evidence to the contrary

[ErroneousBee]

The parade of horrors has happened and is happening in the US.

The Unisys GIF patent is one for starters, then theres the Amazon one-click, Rambus, BT's hyperlink, assorted claims on jpeg, assorted claims on doing business on the web, assorted claims on obvious graphics standards.

Then there is xiph.org, why would such an organisation exist if the US patent system was not suppressing innovation and progress?

For more details, click on the 'patent pending' icon above.

Re:All evidence to the contrary

[sander]

I'm afraid you are confusing the problems with the legal system in the US with the problems with the patents system.

Re:All evidence to the contrary

[sander]

The problem with your claims being that you list both legitimate claims (LZW patent is legitimate - there is absolutely no reason "software" needs to be involved in any way) and bogus ones.

Re:All evidence to the contrary

[werdna]

You are trolling right? If not, WAKE UP!!

Following hyperbolae with more of the same doesn't make either statement meaningful.

here are US patents on virtually every trivial aspect of software development, to the extent that IBM can (and has) gone to companies and essentially said "you are probably violating one of our patents - pay up!". See here for some examples.

Get real. At least, be prepared to back up what you suggest.

Please site a patent and claim number reading on every occurrence of use of a binary search; a bucket sort; an array in a computer program. Don't have the number on the tip of your tongue, or do you consider these not to be an "aspect of software development?" Or was that hyperbolae?

Now, in retrospect, who is doing the trolling?

Careful study of the web site discloses not a single instance of IBM going to a company with a hold-up. Nor does it evidence "US patents on virtually every trivial aspect of software development."

Re:All evidence to the contrary

[werdna]

That's your best shot? And these are examples of what, in your view?

Oddly enough, nobody has yet to cite the prior art invalidating the GIF patent. It will expire without a single incident of abuse or adjudication of invalidity. This is greater evidence of the robustness of the system than anything to the contrary.

As to Amazon, the Amazon preliminary injunction case at the Federal Circuit stands to me as a powerful example, precisely, of how the system works correctly. The tough standard articulated there has operated to avoid abuses, and the litigation ultimately turned up credible prior art sufficient to provoke a settlement of the case.

To Beszos credit, he affirmatively bankrolled the bountyquest searches on his own technology.

Rambus' claims are turning out to be rather more robust than originally anticipated, even by many legal observers.

Then there is xiph.org, why would such an organisation exist if the US patent system was not suppressing innovation and progress?

This is your evidence? The best you can do? Is the existence of xiph the only metric by which we can determine or measure the progress of the useful arts? Is the existence of the Klan, which has existed far longer -- likely has greater membership and supporters -- and appears more financially stable and robust, evidence of the viability of racism as a philosophy?

I'll happily take this debate on. But while we discuss the merits of xiph.org as evidence of suppression, of innovation and progress, let's talk about GDP and economic growth in the IT sector since Diamond v. Diehr . . . :)

Re:All evidence to the contrary

[Sanity]

Please site a patent and claim number reading on every occurrence of use of a binary search; a bucket sort; an array in a computer program. Don't have the number on the tip of your tongue, or do you consider these not to be an "aspect of software development?" Or was that hyperbolae?

You probably mean "cite". Perhaps you could provide me with confirmation that IBM does not have a patent on any of the things you describe - if you can't, then neither can a software developer - which nicely illustrates the problem I am talking about.

Careful study of the web site discloses not a single instance of IBM going to a company with a hold-up. Nor does it evidence "US patents on virtually every trivial aspect of software development."

Oh really? You conducted a detailed and comprehensive study of the entire WWW? That is pretty amazing given that after 30 seconds with Google revealed this.

Applying in EU for patents already issued in US?

[motown]

What about software patents that cannot be patented in the EU at this time, but which already apply in the US?

Will companies be able to apply for these patents as soon as software patents are allowed in the EU? Wouldn't that technically be considered prior art in the EU?

Lose vs Loose

[Anonymous Coward]

he European law sets the right benchmark rather than the looser U.S. system

My God, someone finally uses the right context of the word 'looser'

Disastrous result, say Green Party

[JPMH]

http://www.greens-efa.org/en/press/detail.php?id=1 445&lg=en

Bruxelles/Brussel, 17 June 2003,

Patent vote fails Europe's software programmers

Unlimited patents will be disastrous for the European software industry and SMEs

The Legal Affairs Committee of the European Parliament today adopted a report that allows for the unlimited patenting of software which will, in one swoop, entrench the market dominance of multinational companies, force small software firms out of business and bring to an end the European free software movement.

With precise briefing from the Commission - where the bureaucrat responsible is a former employee of the UK patents office, and by the European Patent Office (EPO) - which pockets money on every patent it grants, the rapporteur, British socialist Arlene McCarthy, has defended a confused report that is full of contradictions. In doing this she has a strong backing from Conservatives but fierce criticism from her own political group.

UK and German MEPs, in rejecting amendments to the report, have ignored the opinions of the Economic and Social Council, the Industry committee, the Culture committee, 140,000 people and 30 leading software scientists who signed two petitions to the Parliament, as well as the 95% of the European citizens who took part in a European Commission public consultation.

The EPO has been illegally granting patents for computer programs for two decades. This practise completely contradicts the Munich convention, which in 1973 established the EPO and decided that computer programs and other rules of organisation and calculation were not patentable inventions under European law.

Dany Cohn-Bendit MEP (Greens - Fr) Co-president of the Greens/EFA group and chairman of a conference earlier this year on software patents and SMEs, said: "This patent report is an insult even to the principle of free trade. Pretending to protect inventors and their inventions, it instead allows multinationals to lock up the market."

Mercedes Echerer MEP (Greens - A), member of the Culture Committee, said: "It is truly regrettable that some of my colleagues are so confused about the nature of information technology. Ideas and algorithms are already protected under copyright. A computer program, on the other hand, is like a kitchen recipe - all that is needed is a pencil and paper to write it down. Patents already protect technical inventions - there is no reason to extended them to cover software."

"This legalisation, as it stands, represents the death of the European software industry, and the death of the free and open-source software industry which, by more than a coincidence, is primarily a European sector. If implemented, it would conclude the transfer of our data-processing control to the US. You can be sure that the report will have a very bumpy ride when it goes to plenary in September with one third of committee members in opposition."

Neil McCormick MEP (EFA - Scotland), member of the Legal Affairs and Internal Market Committee, said: "This is a matter of great public concern. It is important to give incentives to inventions, but this does not and should not cover the essentially logical and mathematical work of software development. There is a real danger that legal development of the kind favoured by the majority in the Legal Affairs Committee will hinder innovative development by small firms, not protect it."

For further press information:
Helmut Weixler
Head of Press Office
The Greens in the European Parliament
Tel: (Bxl) +32 2 2844683
phone: 0032 475 671 340
fax: 0032 2 2844944
mobile phone: 0032-475-67 13 40
hweixler@europarl.eu.int

McCarthy won on all points

[JPMH]

http://www.aful.org/wws/arc/patents/2003-06/msg000 78.html

* From: Hartmut Pilch <phm@xxxxxx>
* To: news@xxxxxxxx, <patents@xxxxxxxx>
* Subject: McCarthy wins in JURI
* Date: Tue, 17 Jun 2003 13:04:55 +0200 (CEST)

The JURI vote was delayed by 2 hours. Our little conference was thereby made impossible. Around 13.00 the voting was pushed through in 20 minutes, and McCarthy won a majority on all points, which means

- introduction of program claims
- refusal of interoperability privilege (ITRE 15)
- refusal of definition of "technical"
- what is new needn't be technical and what is technical needn't be new
- no need for a technical solution, only problem must be technical
- additional rationales for patentability (e.g. need to make money from licensing in view of low-cost economies)

etc.

McCarthy was subsequently surrounded by congratulating journalists and explained them that she only wanted to harmonise the status quo, wasn't legalising software patents, was against US-style patenting of algorithms and business methods, would not hurt opensource software etc. Some of these journalists also had a chance to meet Erik and Alex who watched the session.

A collection of statements and documentation about the JURI vote is found at

http://swpat.ffii.org/news/03/juri0617/

--
Hartmut Pilch, FFII & Eurolinux Alliance tel. +49-89-18979927
Protecting Innovation against Patent Inflation http://swpat.ffii.org/
145,000 votes 400 firms against software patents http://noepatents.org/

Re:Changing Patent law is only part of the solutio

[Groote Ka]

I agree, but not entirely. The problem is the lawsuit culture, indeed. But not suit after suit after suit; the US problem is that patent cases are decided by a laymen jury (well, most of the times, at least in validity cases) and that US suits cost lots of money, up to 100 times the cost of a case in mainland Europe, or even more.

I think I've posted it before, but did you know that when validity of a patent is judgded by a jury, 75% is upheld, whereas this figure is about 67% when it is judged by a judge? And I can also throw in some other variables, for example when a patent of a US company is challenged by a non-US company and the trial is by jury...

Patent can best be judged by a special competent court, like in Germany. It's the most copied patent system in the world (Germany didn't patent it) and for good reason.

Wake up US government!!! (makes no sense, but at least I tried)

UK also thinks it's a bad idea

[horza]

The UK government carried out an extensive consultation and came to the conclusion it was best not to allow software patents. This is effectively a continuation of current legislation, where software has been adequately protected by copyright for the past few decades.

Phillip.

Re:Applying in EU for patents already issued in US

[Groote Ka]

Will companies be able to apply for these patents as soon as software patents are allowed in the EU?

Sure, you can always apply, but...

Wouldn't that technically be considered prior art in the EU?

Yes, that is correct, so the patent won't be granted by the European Patent Office.

No sanity, only malice

[lvd]

This ./ article is very misleading

All the juri rapporteur and the European commission have done is to cloud the issue in confusion.

At the heart of the proposal lies a text that makes /everything under the sun/ be patentable, just as in the US, as long as a computer is somehow involved.

The effect of the cloud of confusion is to make people think that actually the EU has a more restrictive system than the US, but patent lawyers will know better.

'technical contribution' is completely undefined and the clear limit of article 52(2)c, an explicit ban on software patents is removed.

That means that business methods like 'selling cucumbers with the aid of a data-transmission device' will be patentable. As long as 'business' is not mentioned in the claim.

Do some background reading (www.ffii.org) before you post nonsense like 'EU will get better patent regime than US'

One of the amendments which fell

[JPMH]

The Culture and Industry committees were well aware of the possible economic and cultural dangers of software patents, and took care to flag them up by proposing the following recital, amendment ITRE-3.

(As well as the main legal articles, European directives contain "recitals", which outline the broad policy goals, are can be used by courts for guidance on how to interpret the articles).

McCarthy specifically recommended, and got, a vote against the amendment.

"While software plays an important role in a number of industries it is also a basic form of creativity and self-expression. Software is, in addition, a field of specialised engineering and a basic human activity, with more than 10 million professional developers throughout the world and tens of millions of people creating software for one purpose or another. Independent developers and small businesses play a fundamental role in innovation in this area. It follows that the means employed to boost investment in largely software-based industries should not lead to jeopardising the capacity of all concerned to become active creators and innovative users of software, and in particular that patents should not permit the monopolisation of tools for self-expression, creativity, and the dissemination and exchange of information and knowledge."

This was not something McCarthy was interested in, even as a policy goal.
She also killed the clauses which would have given the aspiration teeth.

get a f*ing clue

[Anonymous Coward]

- the director of the BSA /really/ liked the proposal
- BSA is mostly MS funded (read: is a front org)
- MS applied for 90% of the swpats in the EU last year
- MS is on record for the opinion that Free Software can only be driven from the market with (sw)patents

would they be happy if yesterday the Juri adopted anything 'restrictive'?

No - THIS IS NOT GOOD

[Anonymous Coward]

I'm surprised to see /. present this as being a good thing.
Go to http://www.ffii.org/ and find the true story.

The Committee ignored the call of key scientists

[Balaitous]

See this petition signed by the leading European computer scientists, including Robin Milner (Turing Award) and Géraud Sénizergues (Godel Award):

The message is in Catalan, but contains the full text of the petition in English with list of signatories. The petition explicitly warns against claims that only patents with "technical contribution" will be granted, when the practice of the patent office has opened the door to anything being considered technical.

Also, contact the newspapers.

[Moderation abuser]

I'm generally in favour of the Euro and indeed of closer integration with Europe, but the introduction of software patents is terrifying.

So, when you mail your MEP, send a cc to the Sun (talkback@the-sun.co.uk) or other newspaper. Make sure that a layman can understand what you're saying. Having a journalist stand in front of them asking difficult questions will have more effect than simply recieving an email or two.

35 hour/weeks and Severence breeds unemployment

[JohnDenver]

My father works for a French aircraft manufacturer, and from what I've heard French employers despise hiring people, because once you've hired someone, getting rid of them is very expensive.

Having someone work 1 hour overtime is equally painful, let alone having someone come in Sunday evening to fix a Mission Critical System being used in other parts of the world.

I don't have anything against a 35 hour/week. Hell, I'm working a 30 hour/week, 4 days/week and I love it, but I would hate to see if government mandated.

Re:Applying in EU for patents already issued in US

[ProfBooty]

what you do is one of two things, file an application in the epo and USTPo at the same time, or file a PCT application to establish an earlier priority date, then you have 3 years to file an application in any PCT member country.

Filing an application on a patent already issued in europe after its issue date wont work in the US.

erm

[autopr0n]

Actualy I make about $9/hr myself. But $9/hr is the average pay for coders in india. The reason I get $9 is because I'm an undergrad working for the university. I make the same amount of money coding virtual reality applications as someone working in food service. But whatever, it's fun work and I need money.

My last job was $21 writing shitty VB apps. You really are getting ripped off.