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European Parliament Rejects Software Patents
heretic9 writes "The European Parliament unanimously rejected the software patent bill recently put before it. Hugo Lueders of CompTIA, a pro-patent lobby group, said that the benefits of the bill had been obscured by special interest groups, which muddied debate about the rights and wrongs of software patents." Meaning, essentially, that the Conference of Presidents got its way.
The directive was NOT rejected by the EU Parliament, but by the Conference of Presidents - essentially the group leaders of all the various parliamentary parties. It's still a good step, but it's misleading to claim this was an action by the Parliament as a whole.
This does NOT mean that the bill "is thrown out". It means that the EU Parliament is supporting it's own legal affairs committee's call for the EU Commission to restart the process and have directed the President of the EU Parliament to officially request a restart.
The bill must not "go back to the EU" for reconsideration - the EU Commission must decide whether it wants to accept the restart vote by parliament, ignore it, or overrule it. The latter two would mean the Council would go ahead as before.
Thats just the thing. Corporations are legally entitled to all the rights of people. That is what makes them so powerful. You can't jail a corporation; indeed, the worst you can do is revoke its charter (which doesn't happen very often). Basically most corporate punishment comes down to fines, which, if not hefty enough, don't deter future misconduct.
Read up on Santa Clara County v. Southern Pacific Railroad (1886). This is the case that defined corporations as legal people, with all the fun rights we enjoy.
IMO, a constitutional amendment to revoke such rights is in order. I do recall presidential candidates David Cobb (Green), and Michael Badnarik (Libertarian) calling for those rights to be eliminated. Cobb asked for a constitutional amendment, but Badnarik did not endorse an amendment outright.
The doctrine of 'technical effect' is a bizarre example of how a patent office, left to its own devices, will reinterpret the law in increasingly creative ways to expand its own powers.
0 65.html explains, first of all the EPO made a ruling that although programs for computers are explicitly excluded under the European Patent Convention, this did not apply when the computer program could be shown to have a 'technical effect'. This 'technical effect' is nowhere mentioned in the EPC's exclusion; it is an invention by the patent office to have some reason to grant patents on software.
As the thread http://www.aful.org/wws/arc/patents/2000-06/msg00
So for a few years you could get software patents in Europe if you could include some reasoning in your application to say that your program has a 'technical effect' when loaded onto a computer. Since the idea of technical effect is so vague, this allows through any software patent.
Then a few years later the EPO decided that they might as well drop the pretence, and made another ruling which assumes that all computer programs have a 'technical effect'. So the explicit exclusion in the EPC is being ignored.
Now, patents granted under this dubious reasoning are not very enforceable. National courts tend to interpret the law as it is written, and not the EPO's creative interpretation. However, if the directive is passed then the already-granted software patents in Europe (which are just as silly as those in the US, see the FFII horror gallery) will become legal.
The European law on patentability of software does not need 'clarifying', it is already quite explicit. We need to make the patent office follow the law as it stands.
-- Ed Avis ed@membled.com
While JURI (a committee of Members of the European Parliament) and the Council of Ministers have both voted for a restart, the European Commission are still legally allowed to push this through to it's second reading if they manage to put it on an agenda as an A-item.
A-items are a rubber stamping of translations, of previously agreed directives. So far, Poland have been blocking the A-item from getting onto any agendas, but they seem to have finally been nobbled.
Just in time, Denmark have decided to dig their toes in, but if they fold there is still an oportunity to push the directive through.
Of course, flouting the wills of MEPs in this way might be enough to galvanise them into kicking the whole thing out in the second reading, despite the fact that the voting system at that stage is rigged against such an eventuality.
Debian: GNU/Linux done the Linux way
Here are some relavant portions of the Manual of Patent Examining Procedure (the bible by which patents are examined in the US.)
The USPTO's public MPEP
From MPEP 2106, all emphasis added
The claimed invention as a whole must accomplish a practical application. That is, it must produce a "useful, concrete and tangible result." State Street, 149 F.3d at 1373, 47 USPQ2d at 1601-02. The purpose of this requirement is to limit patent protection to inventions that possess a certain level of "real world" value, as opposed to subject matter that represents nothing more than an idea or concept, or is simply a starting point for future investigation or research (Brenner v. Manson, 383 U.S. 519, 528-36, 148 USPQ 689, 693-96); In re Ziegler, 992, F.2d 1197, 1200-03, 26 USPQ2d 1600, 1603-06 (Fed. Cir. 1993)). Accordingly, a complete disclosure should contain some indication of the practical application for the claimed invention, i.e., why the applicant believes the claimed invention is useful.
A process that consists solely of the manipulation of an abstract idea is not concrete or tangible. See In re Warmerdam, 33 F.3d 1354, 1360, 31 USPQ2d 1754, 1759 (Fed. Cir. 1994). See also Schrader, 22 F.3d at 295, 30 USPQ2d at 1459. Office personnel have the burden to establish a prima facie case that the claimed invention as a whole is directed to solely an abstract idea or to manipulation of abstract ideas or does not produce a useful result. Only when the claim is devoid of any limitation to a practical application in the technological arts should it be rejected under 35 U.S.C. 101. Compare Musgrave, 431 F.2d at 893, 167 USPQ at 289; In re Foster, 438 F.2d 1011, 1013, 169 USPQ 99, 101 (CCPA 1971). Further, when such a rejection is made, Office personnel must expressly state how the language of the claims has been interpreted to support the rejection.
There is always some form of physical transformation within a computer because a computer acts on signals and transforms them during its operation and changes the state of its components during the execution of a process. Even though such a physical transformation occurs within a computer, such activity is not determinative of whether the process is statutory because such transformation alone does not distinguish a statutory computer process from a nonstatutory computer process. What is determinative is not how the computer performs the process, but what the computer does to achieve a practical application. See Arrhythmia, 958 F.2d at 1057, 22 USPQ2d at 1036.
For such subject matter to be statutory, the claimed process must be limited to a practical application of the abstract idea or mathematical algorithm in the technological arts. See Alappat, 33 F.3d at 1543, 31 USPQ2d at 1556-57 (quoting Diamond v. Diehr, 450 U.S. at 192, 209 USPQ at 10). See also Alappat 33 F.3d at 1569, 31 USPQ2d at 1578-79 (Newman, J., concurring) ("unpatentability of the principle does not defeat patentability of its practical applications") (citing O'Reilly v. Morse, 56 U.S. (15 How.) at 114-19). A claim is limited to a practical application when the method, as claimed, produces a concrete, tangible and useful result; i.e., the method recites a step or act of producing something that is concrete, tangible and useful. See AT&T, 172 F.3d at 1358, 50 USPQ2d at 1452. Likewise, a machine claim is statutory when the machine, as claimed, produces a concrete, tangible and useful result (as in State Street, 149 F.3d at 1373, 47 USPQ2d at 1601) and/or when a specific machine is being claimed (as in Alappat, 33 F.3d at 1544, 31 USPQ2d at 1557 (in banc). For example, a computer process that simply calculates a mathematical
For the perlexed, here's how this works.
Roughly speaking, the EU has a bicameral legislature, with the two houses being the Parliament and the Council. However, neither one of those bodies can introduce legislation; rather, legislation begins with a third body, the Commission.
Now, European regulations ostensibly do not permit the patenting of a computer program, as such. However, the European Patent Office, has for a while now been interpreting those regulations differently than you or I would, and issuing software patents anyway. However, such patents have not held up in court.
So the Commission drafts a new patent directive that would explicitly permit software patents that had some "technical effect," a term broad enough to encompass just about anything.
The draft directive next goes to the Parliament, where it gets severely amended, such that it would exclude most software patents.
The amended directive then goes to the Council, where it is re-amended to resemble the original version. And then something weird happens. While the pro-patent contingent got its act together long enough to amend the directive, it never got around to voting to send the amended version back to Parliament, and then, it was unclear whether they had a majority in Council anymore, and then, Council went on break.
If the Council ever gets around to sending its version back to Parliament, Parliament will have to scrape together an absolute majority (rather than the qualified majority they needed to have to amend it in the first place) to either reject or further confuse the process. If they prove unable to do so within 3 (or 4, if they vote themselves a further delay) months (a distinct possibility), then the directive comes into force, and all the various national legislatures are supposed to harmonize their laws with the directive.