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European Software Patents Not Dead Yet
Ensign Nemo writes "Software patents in Europe still being pushed.
They're at it again and they're not waisting any time. Even though opposition is there the backers of software patents are getting sneakier and sneakier." Poland, if you help us out again, I pledge to never, ever forget you.
Would you say they're throwing there weight around?
Should I interpret this as "European Software Patents 'Not Dead Yet'"?
Azh nazg durbataluk, azh nazg gimbatul, Azh nazg thrakataluk agh burzum ishi krimpatul! This sig blocked by Slashdot.
One only has to look at the rampant achievements and success of Free Software and Open Source to see how much the rest of the industry is being held back by software patents and other "intellectual property" restrictions.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
Hmm. Guess we'll have to wait until next Monday for more definate information. From TFA:
That the matter would be settled for good next Monday, Luxembourgs Economics Minister Jeannot Krecke for one announced at a meeting of the European Parliament's Legal Committee this Wednesday.
Hmm.. Guess we'll get yet ANOTHER Slashdot story on Monday - if Ms. Krecke is correct in her prediction. Oh well, this is a matter of importance and I suppose as many news stories/comments as we can read, the better informed we'll all be on the subject!
"There's no success like failure, and failure's no success at all."
- Bob Dylan
er, "wating" for confirmation from Netcraft.
:-)
Is it true?
Um, I think you're a little confused.
Open source software, and free software *depend* on copyright. Yes, depend on it. Without copyright, then anyone could take the code, including large corporations, and modify it for their own interest, and sell it without releasing the source code. Basically, it'd defeat the point of the difference between "free", and "Free".
Software shouldn't be *patented* because you're patenting an algorithm. And computer code is a completely logical process. It'd be very similar to patenting a mathematical formula. They're both *discovered*, not really *created*. It also creates a lot of problems in enforceability, and in large corporations being able to sue anyone they please. It's not only logically wrong, but also effectively wrong. It's similar, in a way, to the DMCA in that it gives bigger corporations the power to control everyone.
Very very few people argue against copyright when it comes to software. Free software people/open source people argue against patents alone.
oh, and trademark has nothing to do with the issue. Don't lump the three under the whole "intellectual property" umbrella. You'll almost always be wrong when you do. They have very little to do with each other.
If you create something really novel, even if it is in software, why *shouldn't* you be able to get a patent on it?
12:02 Restate my assumptions:
1. Mathematics is the language of nature.
2. Principals and ideas in mathematics are universal truths; hence they are discovered, not created.
3. Computer science is the straight forward application of discreet mathematics. Thus ideas and algorithms written in computers are not patentable.
[...]the impact of denying access to techniques and logarithms effectively shuts out competition[...]
Ah, yes, the old "don't let them look up logarithms in a table" trick.
Very good post.
Copyright and patents were intended to encourage people to make stuff that otherwise wouldn't be done. When people and organizations are willing to create an entire operating system and a collection of thousands of programs (GNU/Linux and the thousands of associated programs), the basic premise of copyright and patents is nullified.
If people will create without incentive, there is no reason to impose needless costs on both consumers and creators by strangling the public domain with laws like copyright. If Microsoft refuses to develop Windows because it no longer has any copyrights, then Linux is there as a replacement, and it will become 10x what Windows ever was or Linux is today once it becomes unshackled from copyright and patent issues and has the customer base of MS Windows today.
And that is assuming that no grants are given to fund open source development. The Chinese government, among others, has shown that they are willing to fund open source work. A small amount of federal funds would replace a massive amount spent in retail software licenses.
The motivation behind patents is not to reward people who innovate for the sake of patting them on the back, but to provide insentive for them to begin innovating in the first place, with the hopes that society will benefit from their creation after a small time period.
The reasoning behind patents is dubious in general - it presupposes that there would be less innovation were they not to exist (or even to exist in a more limited form). If history has taught us anything, it is that greed always finds a way to mask its ugly head and I'm sure that businesses would find a way to profit from their inventions even were patents not to exist. Being the first to market (and the name recognition that goes along with it) can be a very powerful ally indeed.
Secondly, it is not clear that the current time period for software patent expiration is anywhere near reasonable. In the fast-changing world of computers and information technology, even a year can be a long enough time period for software to become obsolete. How long do software patents last? 10 years? 17 years?
Then look at the patents that companies try to secure - one click ordering via amazon.com? If the patent on one-click ordering were even remotely influential on the companies decision to implement that feature, then I could perhaps see that a software patent may be useful in achieving its dubious purpose. But in this case, it is the ease of ordering - the desire to improve the customer's experience - from which the implementation gains its lure.
The above question strikes me as no more grounded than when a five year old gets into a fight with his sibling and says "stop copying me!". One person's being the first to have a particular idea does not in anyway entail his or her posession of that idea. So with this in mind, the question is: "If you create something really novel, even if it is in software, why *SHOULD* you be able to get a patent on it?"
This reminds me, next month is FOSDEM (Free and Open source Software Developers' European Meeting) in Brussels: http://www.fosdem.org. I suggest we raid the EU headquarters and talk some sense into the EU ministers.
If you don't want someone to know how you did something, close the source. If someone comes around 2 weeks later and duplicates your work.. well it wasn't really novel was it?
I've come up with many algorithms in the past that I've thought were novel... then found out someone thought of it and gave it a fancy name 50 years ago. I could have got a patent on it if I'd wanted - but I wouldn't have deserved it. I'm just not *that* good.
of course they're not dead. software patents benefit the corporations that control the governments, so they will eventually be installed in all countries. you'd think people would get the message from the backdoor process that was used to almost install them on eu countries this time. don't count on stopping it again.
The purpose of patents is to allow the patent holder a limited monopoly on the invention while telling everyone how it's done.
Think of it as a solution to a problem for which one can, if the solution is truly clever, receive a government granted monopoly on the solution for a period of time.
What we have now is that any solution, no matter how obvious or trivial, is being granted the same monopoly protection as if it were really unique.
It's like giving a class a test in which the first person to solve the problem by some method gets an 'A' and the rest using the same method are given 'F's. The question is whether that problem is sufficiently difficult that the other students would have been able to arrive at the same solution without copying the solution of the first to solve the problem.
If the other students could have only solved the problem by copying that of the first, then the 'F's would be appropriate. But if the problem was such that every student satisfactorally solved the problem on his own, they should all receive 'A's.
"....the Ministers of Agriculture in their meeting of the EU Council of Agriculture and Fisheries on Monday are to give the nod to the controversial position of the EU Council of Ministers on the Directive on the Patentability of "computer-implemented inventions"".
Isn't that a bit like asking the Minister of Defence if they think the tax system should be revised? Or asking the Minister for Education what his thoughts are on creating a new highway?
I'm beginning to see why so many Europeans don't take the EU seriously.
I'm a creator, but I'm concerned that operating in a legal minefield of vague, overlapping and bogus patents will destroy my ability to make money.
Copyrights are a reasonable match for software, and that's all the protection it needs. Software is too maleable to support well-defined patent claims. Software doesn't need copyrights and patents. Other kinds of products don't get double IP coverage; why should software?
I'd rather take my chances that some someone duplicates the functionality of my products and competes in the marketplace than risk having some jackass submarine patent-holder pop out of the woodwork demanding cash out of my bank account.
So, tell me again why we should introduce this costly, bureaucratic and monopolistic process. Exactly how will it benifit the citizens of the EU? Will it give us new, innovative software? Will it give us more jobs (apart from all the patent lawyers, that is)?
Please alter my pants as fashion dictates.
patents create property. property is wealth. patents like all property create wealth. the more varieties of property in society the greater the wealth that can be created. the better off society as a whole becomes. you only need to look at the US versus poorer countries. it is the enforcement of property rights that has created wide spread wealth.
Weapons create property. property is wealth. Weapons like all property create wealth. the more varieties of weapons in society the greater the wealth that can be created. the better off society as a whole becomes. you only need to look at the US versus poorer countries. it is the enforcement of others property rights that has created wide spread wealth.
Being the first to market (and the name recognition that goes along with it) can be a very powerful ally indeed.
To be fair, this was potentially something that patents were about: If a small company or lone inventor comes up with a stunning new product they potentially don't have the capital to get it to market. To get the capital they need to shop the invention around venture capitalists. Once they've made the idea somewhat public (in the shopping around phase) a large company with lots of resources could easily duplicate, produce, and market said invention before the inventor can manage to raise the capital and get production underway. In principal the patent would help alleviate this because the invention could be openly published, but there would still be a window of time for the inventor to raise funds and get his product to market before anyone else was allowed to join in.
Of course in this day and age of NDAs for everything, and the rate at which new products (particularly software) can be brought to market, this sort of concept just doesn't carry as much weight as it use to.
Jedidiah.
Craft Beer Programming T-shirts
Well to begin with, patents are an imposition on freedom. You give someone a temporary and artificial monopoly in order to gain benefit to society. You don't have to justify why not give them patents, you have to show why you should. The benefits (at least in theory) are thus:
1) Companies have a greater incentive to innovate and create new products.
2) Little guys don't get their inventions stolen.
Except that neither of these apply to software patents. Now, clearly, there's no shortage of innovation and new product creation in the software market. I mean, really, there are fifty zillion software companies out there and myriad individuals just writing software in their spare time. And software patents are more like to hurt the little guy than help them. The little guy can't afford the cost of doing a patent search for every line of code he writes to make sure that no one else has used the same idea in the last 20 years.
In software how novel things are is very unclear. There would be nothing wrong with patenting things which truly are completely novel, but if ten programmers are given a problem, four or five of them are going to come up with the same answer. If we allow the first one to come up with an idea to patent it, it means that the others aren't allowed to solve the problem in the best way even though they would have on their own.
And more to the point what will actually happen is that the second, third, fourth, etc. guy will come to the problem, have no idea how the first guy solved it, but come up with the same algorithm and implement it. They won't know what the other guy named his algorithm, so they won't be able to find the patent and the software will be produced. Then at some later point, the first guy's company will discover this and hold the other guys' software hostage with a patent lawsuit. Patent is meant to prevent really stealing people's ideas, but when you look at the patents which have been granted for software in places where such is allowed, the level of novelty required is so low that multiple independent creation of the idea patented is not only likely, but in many cases inevitable.
Further, showing prior art in physical devices is fairly easy, but showing it in software where other people's source code is hidden from you, becomes almost impossible. So maybe in the above scenario, it's not the first guy who patented it, but the third, but the first and second ones didn't see it as novel or didn't work for companies which worry about patenting things. But by the time the lawsuit roll around 10 years later, the first two have completely forgotten all about it and their code is each buried inside some obsolete product whose source code is locked away in a secret vault somewhere.
Now, you may note that this also makes it harder to find the lawsuits to press to begin with, and that's true. But there is one very obvious section of software which is more vulnerable to suits over software patents: open source software. I personally know of at least one major, well known open source project used by a significant portion of the user base of this web site which accidentally stepped on the patents of a large company. Now, in this case, the company has done a really terrific thing, they've not filed a lawsuit and aren't mentioning it in public (which is why I'm being so vague) so as to not hurt the reputation of the project or in any way cause FUD. But, in general, software patents are likely to hurt open source because they'll be enforced on open source products much more often than on closed source products.
Keith
Q: How many polocks does it take to stop software patents from being created in Europe?
A: A simple majority.
Wait. That's not funny.
Well to be pedantic, "pedantic" isn't a synonym for "contrarian". You should know what the big words mean before you use them.
... and write to your minister of agriculture, if you're a EU citizen!
Let them know that software patents are important enough to deserve a proper discussion in the parliament. Add why *you* think they are important (and wrong).
For the Belgians and the Dutch: http://www.softwarepatenten.be/landbouwraad.
For the rest of us: http://ffii.org/.
Please, take this 5 minutes, it's worth it.
Chris.
Because that is not what usually happens. Software patents are used as weapons to destroy competition, not as protection for true innovation. If patent holders would limit themselves to only truly innovative, non-trivial solutions I doubt anyone would care. As it is we (anyone making a living in software) are under constant threat because someone might take out a patent on some completely trivial technique tomorrow and shut you down for the next twenty years.
I asked this in the previous patent discussion as well, but let me ask again: does anyone know of any "good" software patents? I.e. non-trivial, innovative, and realistic? The only one that came out of that previous discussion was the RSA patent, which I agree meets these criteria and as such is worthy of patent protection.
But right now most software patents do not fall in this category. Instead they patent utterly trivial "inventions", often in ways that have been standard practice within the industry for years.
Let me add a prediction for what will happen within a year of software patents becoming a reality in Europe: with patent protection finally possible in all major markets, Microsoft will make its big move against open source. It will attack Apache, Samba, Mozilla, Open Office, and perhaps some others, stating they all violate Microsoft-held patents. I suspect Linux itself will be allowed to exist as a sort of token competitor to Windows, but there will not be any useful software left to run on it, which accomplishes Microsofts goal as well as destroying the OS itself.
Moreover, the people who worked so hard to make these incredible projects a reality will be painted as "thieves" in the media. After all, they "stole" "intellectual property" that so clearly belongs to our beloved "innovator", Microsoft.
One final question on my mind: who keeps adding software patents to all sorts of irrelevant agenda's in Europe? It is very annoying having to fight this battle every two weeks, especially since our adversary is some nameless civil servant who apparently got one bribe too many...
I guess this is one major difference that sets software apart from everything else: R&D cost. As far as I know, R&D for chemicals and proteins (i.e. medicine) is expensive, even after taking the salaries of the researchers/inventors out of the consideration, due to the infrastructure, equipment, and raw material necessary even just to build the prototype. So, for someone (and nowadays, most likely a company) to even get started on a new invention/innovation, he has to have some sort of guarantee that if he succeeds, he will be able to recover his costs and even proft, perhaps---thus, a simple solution is legalized monopoly (and the price-markup that necessarily follows).
On the other hand, software patent? What R&D cost exactly goes into it? Sure, programmers might get paid a lot (or at least there was a time when that was the case...), but if a lone-coder is making a program, other than the so-called "opportunity cost" what other cost is there? Hardware purchase cost? Perhaps---but that's negligible, compared to other expenses (i.e. "cost of living") throughout a year. Multiple hardware purchases (for testing, etc.)? But that would only be limited to programs that deal with the hardware directly, and those don't constitute a majority.
So, with software, the developer doesn't have to worry about recovering the costs because there isn't that much to begin with (now, profit motive is something else, but why should we make a law that make a few people wealthy beyond reason?)---so, there isn't that much incentive software patent gives to innovate. Rather, by creating an artificial barrier-to-entry in the market, it stifles innovation (and yes, the same argument may be used for even traditional patents, but in those cases, it can be argued that the incentive outweighs this).
Supporting Open Source software by not introducing software patents is the best thing we can do for our trade balance. By using more and more Open Source instead of paying overseas countries for commodity software like Operating Systems and Office suites the more likely it is that Europes own software packages sell more than we import from Oracle, Microsoft, Adobe etc.
:).
That is a solid argument for the MEPs. Something they can understand.
Im all for copyright legislation because it protects Open Source aswell as commercial endeavours - that is very important, but patents on software algorithm and ideas should not be possible, next thing you know someone is patenting pi - or atleast the first five decimals
There are software ideas that are unique enough to support a patent. The problem is that every software idea ends up being patented, unique or not.
This effectively makes it very hard for small and independent software developers to exist as they don't have the money to get a patent. Don't have the money to protect against lawsuits for unjustified patents (it takes a lot of money to get a patent overturned). And finally, if they some way get a patent, they can't afford to protect it.
Furthermore a problem with software is that you patent an idea and not a solution. Eg you can patent "buying items with one click" instead of the actual implementation.
My biggest gripe is that I don't see any benefits from software patents. If you can demonstrate that it has some benefits I'd be interested in hearing about it.
Very very few people argue against copyright when it comes to software.
Which makes the constant stream of slashdot posters arguing against copyright for music, films, etc all the more gauling and hypocritical. Why should the result of my efforts be afforded special protection just because they happen to be code, rather than music?
It's official. Most of you are morons.
Patents which are too ambiguous and too general, those having no real use to an overall industry or those too similar to existing patents or existing work, should not be condoned. Companies should not even bother---it makes them seem disrespectful to the industry.
In perfect world this wouldn't happen and therefore software patents should be possible. But in the real world, where companies try to patent anything that they can, patent offices are not able to investigate wich patents are too general to be allowed. This is why you get patens for one-click, double-click, scrollbar...
Other industries have existed long before patenting and on those industries most of the common tools and technigues have been availeble for everybody to innovate. When it has gotten more complex, then came the patents. But with more complex structures you need more R&D or something really innovative to prevent anybody else of doing something basic stuff.
software industry is just too young and evolving to be limited with patents.
Not being allowed to exactly duplicate someone else's work will encourage people to try alternate solutions, or experiment with variables.
Or just forget their ideas, because they have not enough resources to find out what parts of their innovation has been already been patented. Why risking everything, when you can join the big company and work there as they have allways done.
Eventually someone's bound to slip up and say "YES".
GJC
Gregory Casamento
## Chief Maintainer for GNUstep
"For example, electronic companies want to keep the same type of patent coverage for the next generation of their products (with more embedded code) as they are used to having. And what's wrong with that?"
A hardware idea simply re-implemented in software is not a new idea and not patentable.
A pure software algo is a mathematical discovery and not patentable. You cannot patent mathematics.
I think you misunderstood what the EU parliament did, the wording rules out pure data processing patents. It does not rule out software as part of an invention.
So electronics manufacturers can still patent their widgets because the software is part of the new widget.
The other change was to beef up the 'technical' requirement, to prevent business process patents disguised as software patents. e.g. electronic shopping lists, one click ordering, assigning rating numbers to how powerful a computer is in order to decide if games will run or not...
Who could argue that that isn't a good thing!?
you do need to patent chemical processes, machines etc, because they are not covered by copyright. Software, on the other hand is already protected by copyright, and copyright is a much fairer way of protecting creativity as you have it automatically, whereas you must spend a lot of money and time to get (and defend) a patent.
On the 13th Jan, I received the following (extract) from the UK Labour Party group of MEPs:
"The Labour MEPs' position is reflected in the amendments we tabled and voted for in the Parliament's report on the Commission proposal on the patentability of computer-implemented inventions. In short, the position remains:
. No US-style patenting of software.
. Software as such, must not be patented. No patenting of business methods or "general ideas"
. Opensource software must be allowed to flourish and the Commission must ensure that this Directive does not have any adverse effect on opensource software and small software developers.
. Patents and the threat of litigation must not be used as an anti-competitive weapon to squeeze out small companies."
I'm not sure what they intend to do about this latest news. Email/snailmail all takes so-o-o-o long and I wonder whether it's just assistants sending stock replies...
Did he inhale?
In Germany there is a huge majority in the parliament (with supporters from EVERY party) that is AGAINST software patents.
Sadly, the parliaments "delegate" to this EU meeting (Federal Minister of Agriculture) Renate Künast has gone into a "hear no evil, see no evil, speak no evil" mode, so demands that she stands up against the EU directive will probably fall on deaf ears.
+++ MELON MELON MELON +++ Out of Cheese Error +++ redo from start +++
And that may exactly be the FTC report concluded that patents in the computer hardware industry and semi-conductors are generally considered to be not very efficient either.
Further, even though the intellectual achievement is quite similar (the routine and layout of the chips may require some extra time), in practice you often need either a chip fabrication line, or have to buy stock of those chips with someone else. In case of software development, almost the only investment that really counts is human capital. You don't have to setup a new assembly line for each program.
There are indeed general problems with the patent system (e.g. triviality). However, software patents turn out to be especially sensitive to those issues, and they are in fact different. Otherwise, why would all those studies make a special case out of software?Donate free food here
This so-called 'A-item' should not have been put before the committe in the first place as it disregards the rules for placing these items. The (unelected, govt. appointed) EU Commission (as usual) is simply making up its own rules as it goes along.
With this sort of arrogant crap we constantly suffer from the Commission, is it any wonder that even if this item is thrown out, we still might not win. The European Patent Office can still do its own thing. Don't believe me? The EPO is not bound by many of the laws or regulations that most of the citizens of Europe take for granted, such as the European Convention on Human Rights.
Some examples:
. The Employment Law offers the staff extremely limited protection. Staff can be dismissed almost at will by the President and have no claims to unemployment pay or other social security payments
. Basic legal rights are ignored. The President is the ultimate ruler of the EPO. He is judge, jury and executioner. His decisions on matters within the office are final. Any decision made by the President can be enacted immediately. There is no "stay of execution" pending the outcome of appeal hearings. Sanctions are arbitrary and harsh.
. Even criminal law is disregarded: In 1995 the then President of the EPO physically attacked and injured a staff member, the Administrative Council of the EPO subsequently refusing to lift the immunity of the President.
Did he inhale?
Try to catch the BBC Radio 4 programme in business this week (warning the schedule info is correct but the content is still on last week's programme). I expected this to be just the normal corporate b/s, but it was in fact more interested in problems in the USA, particularly in patent examination. There are representatives on both sides of the argument, but I would have the "say no to patent expansion" side winning. There is a repeat on Sunday evening 21:30GMT. I don't know if the "listen again" has moved to the current edition yet - as I say, the web site is stuck on last week.
I'm sorry, but I believe you're confusing Europe with the US. Europe did find against Microsoft, and is only discussing software patents now because they already rejected the proposal the first time around.
Europe as a whole certainly has its flaws, but its government being absurdly pro-corporation is not normally one of them.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
The EPO is stating that: A computer program can be patented as such, if it has a "further technical effect". But practically any solution to a computing problem constitutes a "further technical effect".
..." consisted in the economisation of space on a computer screen. Wow! Novel or what?
The EPO further declares that the "arrangement or manner of representation", may as well constitute a patentable technical feature. And examples which are given include pulse code modulation or a measuring instrument which produces a particular form of graph for representing the measured information and a computer data structure. This means that according to the EPO's guidelines, the order of information in a data structure could be patented if accessing the data structure is claimed. Yes!! I claim Name and Address (and Address and Name, to be on the safe side)!
As the FFI points out:
The most frequently used rhetorical trick of the Council paper works as follows: [A] is not patentable, unless [condition B] is met. But, upon close scrutiny, it turns out that condition B is always met.
It gets worse.
The wording "normal physical interaction between a program and the computer" means about as much as "normal physical interaction between a recipe and the cook", that is: nothing. It is a magic formula whose usage can be inferred only from recent decisions of the EPO, in which it served to justify the granting of patents on geometrical calculation rules to IBM. In the present case, according to the EPO, the "further technical effect beyond
Did he inhale?
As an example there is a patent on using pointer exchange to swap two large data structures instead of swapping each member of the two structures. The patent applies to any software that is implementing a CPU emulation. So a very old technique is patented because nobody has documented that it has been used in a CPU emulator, even though it is just the same as any other case.
This is the problem, software is easy. It is trivially easy such that a teenager can master the most advanced of techniques. The only difficult thing is not making mistakes and missing bits out when you translate the logic into source code. That just takes discipline to write down each and every step in full and knowing how the language you are using actually works. It is thus certainly not patentable. However, I beleive that things like the psycological model that an mp3 encoder uses to select information to throw away might be reasonable to patent.
But many devices are just the sampling of a signal, then transformation, followed by the application of the result through an output device. The input device should be patentable if it is inventive and difficult, and so should the output device. The transformation used to be difficult when it consisted of cogs and cables and things. With software, when you know how the transformation should go, it is trivially easy, and thus should not be patentable.
I think this "Computer implemented invention" thing is supposed to cover the cost of discovering the necessary transformation. That could be reasonable if the transformation is a truly new and difficult thing to grasp. But I think a patent is still wrong for that. The effort has gone into mathematical calculations of the relationship between the input and output and the acceptable margins, and that effort should be protected enough to allow people to produce without cheap duplicates running the original producer out of business.
I think that the discovery of scientific knowledge for business purposes should be protected. That is what patents are supposed to do, but that has nothing to do with software, and no software technique should be patentable. Only the application of a specific transformation to convert a particular defined input to a particular defined output to complete a given physical (*not* logical) task should be covered. How you make the software do that is always trivial and should be always unpatentable. Making levers and cogs do it is hard and could be intrinsically patentable but not software.
EU is not for the benefit of citizens, but for the benefit of corporations.
EU is not for the benefit of corporations. EU allows for trade and business between and outside of member states. A cattle rancher in the UK could be hurt or assisted by trade regulation enforced by the EU with the United States. That cattle rancher is not a corporation, but an individual doing business within trade laws enforced by the EU that his/her country is a member there of.
It is a market, not a democracy.
Actually, it is a democracy. All member states have equal representation and vote. It has a presidency that is regularly rotated.
So, does are you saying that the telephone was discovered or that America was invented...?