EU Parliament Demands Fresh Start for Patent Directive

ravenII writes "Members of the European Parliament from countries including Germany, Italy, the Netherlands, Poland and Sweden have asked for the software patent directive to be redone from scratch, according to a report on Monday."

Comments

Patent machinery

[Lindsay Lohan]

Members of the European Parliament from countries including Germany, Italy, the Netherlands, Poland and Sweden have asked for the software patent directive to be redone from scratch

The patent directive is ill-advised because it unnecessarily broadens the area that could be governed by patents. It's not even just about software patents. Patents on ideas are wrong, whether in software or in business. You should patent some concrete machinery, not a way of doing things.

Re:Patent machinery

[brlewis]

Without that storage, the software is an idea, but once it's on a harddrive|flashdrive|internets, it's more physical, right?

But if you're going to patent software, why not patent literature?

The de jure situation in the U.S.: If someone were to submit a patent application for "Hamlet rendered in ink on paper", the patent could not be rejected only on the grounds of the literature not being statutory material for a patent (test 1). Because the ink and paper are statutory, you have to move on to tests 2 and 3, novelty and non-obviousness. Neither the ink nor the paper is novel. Nor are the ink, paper and literature combined into a whole in a novel way. Novelty in the literature doesn't count because it's not statutory. The patent is invalid based on non-novelty. This is the Diehr test, and software that essentially patents an algorithm for a general-purpose digital computer is invalid under this test.

The de facto situation in the U.S.: The USPTO gets paid according to how many applications they accept, so they are going to read the law in such a way as to be able to accept as many applications as possible. That means software patents generally get granted, and the burden of proof is on the victim to show that the patent should have been rejected.

Re:Patent machinery

[ThosLives]

Your comment is starting to get at the heart of the matter: what is it that patents (and copyright) are "supposed" to do?

"Copyrights" should really have been called something like "distribution and performance rights", but back in the day, you enforced this by limiting the ability to copy. Now there are no physical barriers to copying so the word is odd. What "copyrights" are intended to do is this: make sure that the people who originate a work of art are the only ones with the right to obtain compensation for the distribution of that art. I'm not even sure how 'performance' fits in, because there are some folks that maybe wrote a song but couldn't sing, but other folks will go see someone else who sings it better - so are the people paying for the song or the performance of the song? It's not clear what the correct distinction should be.

Patents were slightly different - they were originally around so that the garage inventor would be protected from the giant corporation (at least, I hope that's the original intent!). Think about it: if you're a big corporation, you don't need to be "protected" from people stealing your idea because you can build and market it. If you're a small operation, you have to work hard to get resources to develop. The patent protected that period of time so that a rich entity didn't come along and beat you to market using your idea. Now only big entities can easily get patents, and they don't so much use them to be first to market but to keep others out of the market. The intent of a patent should be "development protection" rather than "market protection" (we all know that artificial barriers in the market are inherently Bad). Giant companies hardly need development protection, and the only reason they want "market protection" is to cover their incompetencies (yes, I know the truth is hard to swallow) at adapting to changing markets.

So, my proposals to revamp the whole system would be to come up with a new system of "distribution rights", "performance rights", and "development protection" with appropriate, thoughtful definitions for each of those (to distinguish what customers want as in the example of the writer and singer that I gave above). What we need to keep in mind is that the people that deserve the "protection" from these laws is not the big businesses (publishers, manufacturers, etc.) but the people that generate the thigns of value - the artists, the engineers, the performers. After all, you will always have artists and engineers independently of the means of getting their ideas out to the masses; the current trend in "intellectual property" seems to miss this.

Re:Patent machinery

[Znork]

If you dont have the resources for a prototype you wont have the resources to file for a patent, and you _definitely_ wont have the resources to enforce it, nor defend yourself against countersuits.

Of course, in the case of software, if you have a GREAT idea for some REVOLUTIONARY program, you'll get sued for violating several hundred different patents, losing the savings and venture capital you'd managed to scrape up, and driven to living on the streets in personal bankrupcy before you've finished your first thousand lines of code.

Personally I'd rather have the legal right to invent without getting sued than the right to sue without inventing.

Re:Patent machinery

[Qzukk]

Wasn't the purpose of patents to allow us little guys to profit from a good idea without having to risk our future on it?

From where I stand, its not doing that. Not even close. I'm working with a startup, and we thought about patenting our software, and the first thing we did was run into someone else who has patented something similar (the only difference is that their patent calls for two databases to do what we can do with one database and logic). Having spent more than it would have cost to file a patent ourselves on a lawyer, search, and the reactive scramble, we decided it wasn't worth it.

Even as it is, externally our program shows no difference at all to the patented algorithm, since it does essentially the same thing in an internally different way. Eventually we'll probably be sued, and millions of dollars in fees and legal expenses later, finally convince a jury that no, two databases are not the same as one database and a handful of user-supplied rules. And thats if we're not forced to open our codebase to our competitor, after which we'd pretty much be dead. It'd be what, two days? a week? Before they update their software with new rule-based operation that they just "thought of" and we'd never be able to prove they stole.

Re:Patent machinery

[sjames]

If you have a great and revolutionary product that might infringe on someone elses code - you just need to prove that yours is different OR get sued.

What enforces the OR? Nothing but the high moral character of the potential plaintiff. That is to say nothing at all. You will need to prove that yours is different, but you'll have to do that in court while your capital bleeds away in legal fees. Keep in mind, the plaintiff doesn't have to prove their case to win, they just have to drag the case out until you can't afford to defend yourself anymore.

Your only hope is to make sure that the plaintiff/extortionist can buy you off a lot cheaper than they can plow you into the ground.

Re:Patent machinery

[Kell_pt]

I would like to have the legal right to invent and not have my stuff stolen by same lame ass who is nothing more then a hack and then I can't touch him cause some douchebag decided patents shouldn't apply to software.

Reading this I wonder wether you actually have ever programmed over a couple lines, or even ever invented anything worth patenting. Give another 10.000 people the same problem, and someone is bound to come up with the same idea you had - or better. And if you have a patent on a worse version of their idea, they won't be able to patent it, due to some douchbag w/o the amount of brain required to finish an idea.

As an example, there's one form of Maglev devices which is far better than what we have running, that has never seen production, because the owners of the patent charge too much for it. Even though they never did anything useful with it, noone can build something even similar - by releasing their patent they infact "poluted" the world by locking in an idea.

Re:Patent machinery

[molnarcs]

But then if I could get a hold of a copy of your copyrighted work, I could build the invention myself -- your copyright wouldn't stop me from doing that.

True. The difference between a world with ideas/software patentable and a patent-free world is only this: in the case of the former, your idea is already stolen before you even come up with it.

To put it differently: you come up with an idea you have no means to implement at the moment. Should you be granted a patent for your idea? Because if you should, than I have lots of ideas, which, if I had the means, I would patent asap. Are these great ideas? Maybe some of them... Do I have to prove that they are? (proof is in the pudding - or rather, the implementation!). I just have to wait until someone builds a gadget that is based on my ideas (more or less) and then... sue! Yes, that would be great.

Actually, as I said, I don't have the money to patent my ideas. But [insert_name_of_random_corporation_here] has. And what these usually do is that they patent ideas as fast as they can. It doesn't matter if these ideas are great or not. If you patent 1000 ideas each year (I use ideas here in a very broad sense) there is a good chance that at least a few of them would be great ideas. And because they are great ideas, it is very likely that someone else would think about it, who instead of using the patent system as a lottery (and spend his/her money in patenting the idea), would build the thing. And because someone, who didn't bother to try to implement it patented it first, this inventor (of not just great ideas) would find himself in the court room.

Of course, this is just an example - a little bit exaggerated (or is it? we have seen these things before) but still it shows quite nicely how easily a patent system could be abused. And it WILL be abused, because there is no way you can filter all the patents that are applied for in the patent office. Also, if you are so brilliant as to think up the idea of The SuperGadget - you will have to work to get it built/implemented. If you come up with an idea of something that there is no way you can implement, than you are not that brilliant.

Re:Patent machinery

[Qzukk]

why not prove to the patent office that your process is different.

In other words, feed the system more by having someone write the patent and file it and adding yet another patent to the pile?

My preferred solution is to require:

1) software patents that expire within the usual software life cycle (of about 4-8 years)
2) require some form of structured pseudocode that clearly describes the process being claimed
3) Similar to a Design patent, only one process can be claimed per patent, none of this "The system in 1, 3 and 8343 whereby the operator is eating a peanut butter and jelly sandwitch while entering data with his/her left pinky" that plagues the system now.
4) Titles and abstracts will be written by the reviewer to accurately describe what is being patented, NOT the misleading gibberish and shoutoutz that show up in the patents these days.
5) 2+4 require more qualified personnel as you say.
6) In the absense of 3, date each claim individually to prevent submarine patents (real ones, not the "zomg you sued us from nowhere" we hear about often here) where people claim a flagrantly invalid process just to get a starting date, and then bounce the patent against the patent office repeatedly while adding new (sometimes their own, often other peoples') innovations to the claims, resulting in a patent that may expire sooner, but for which all prior art must beat the original filing deadline, even if it had been in use a whole year before the actual claim had been added.
7) Better beats older. If you invent a sort process that sorts in O(n log (n/2)), and patent it, and I read the patent and see that by changing a line in your pseudocode it becomes O(n), I win. People who wish to use my O(n) patent come to me for licensing, even though your patent may have been heavily used. People who only want to use O(n log (n/2)) can go to you for your silly patent, but you have no right to challenge mine for one-upping you.

Of course, eliminating the "business method" patent that software uses now would be the far superior model. Businesses ran fine for over 200 years (Ending in 1998 with the State Street case) here in the US without patenting their "methods", and even longer in Europe.

Bush will be happy ...

[auburnate]

The article states:

Poland's last-minute intervention has made them popular with supporters of the anti-patent movement.

Bush has his famous "You forgot Poland" comment. Maybe he was on to something.

Re:Bush will be happy ...

[Zocalo]

Poland's last-minute intervention has made them popular with supporters of the anti-patent movement.

Yes, and it's not too late to show your gratitude either by adding your signature and any comments to the "Thank Poland" letter. People on Slashdot so often advise writing letters to bureaucrats in order to complain, it's nice to able able to thank them for getting it right once in a while.

Re:First Thought

[Entrope]

Groklaw's commentary on the request provided some interesting comments. One reason is that if the motion is granted, software patents end up years away rather than months away. Another reason is that it provides the European Council a graceful way out of software patents.

While I am glad that software patents have been thwarted in Europe -- hopefully for good -- I do wonder if that kind of motion will be broadly used to set back other controversial, but less pernicious, kinds of legislation.

What US Should do

[superpulpsicle]

Start from scratch! The U.S. patent system is screwed up beyond belief. There is nothing I can say here that hasn't already been said before. Also we need to make it so that no corporations can own patents. Only individuals or groups of individuals should own patents. An entire corporation is too big and too financially strong of an entity to own a patent.

Re:What US Should do

[ynohoo]

Or changed to include the responsibilities that go with that freedom. Since the behavior of most corporations is sociopathic at best, and frequently psychopathic, they should all be locked up in loony bins until they learn how to behave ;D

patents vs capitalism

[brlewis]

Many of the new member states are new to capitalism and have more extreme capitalist views than the old members. This might slant the debate in favor of software patents.

What are you talking about? Capitalism is about free markets. Patents are about state-sponsored monopolies. Extreme capitalist views would slant the debate in favor of removing patents altogether, not just software patents.

The lesson I learned..

[SlashDread]

No matter how un-effing-believable un-democratic EU ministers can be, and you MUST research the EU patent story for some disgusting examples, the people -directly elected- in the EU parliament have listened and -do- hold some power. Yay.

Now if only we (as in we, the people) could get more direct say in EU minister appointments, or resignments.. we would not have to go through all this absurdian EU counsil of minister elbow politics.

We should look at the US.. some things clearly work better there, and some things do not. Much local power for example.. good idea. Big Money and politics.. bad idea.

let's patent recipes too!!!

[xutopia]

Patenting software is like patenting recipes! I say if patents pass we should patent recipes as well!

Patents and Small and Medium Sized Businesses

[TeachingMachines]

Thus patent-related risks, for example, were increasingly having an effect on decisions made by public administrations and private organizations on whether "in view of infrastructures and their possibilities to purchase software and services from small and medium-sized companies."

People are finally getting it: small and medium-sized businesses won't be able to produce software products and services if the patent directive is initiated. IBM holds 40,000 patents, any one of which can be used against a small company, essentially bankrupting them. Microsoft is in a similar position. Amazing that Europeans are seeing the light.

stealing not required

[brlewis]

I can only sue him if his code was stolen from me.

That's not true. You can sue him just because you feel like it. You can win if his lawyer thinks there's some possibility a court might decide that your patent claims cover his software, or if he thinks the legal costs wouldn't be worth it.

You can probably win more damages if you can prove he was aware of your patent, but by no means does he need to steal your code, or even be aware of its existence, for you to sue him.

EU patents a bad thing

[prunesqualour]

There's a decent piece in today's Guardian about patents on software. Interest declared: I wrote it.