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EU Rapporteur Publishes Software Patent
Sanity writes "Michel Rocard, economist and former French prime minister, has just published a report on the European Software Patents Directive. He is the European Parliament's draftsperson or "rapporteur" on the directive, and so it is likely that his views will be taken very seriously. The anti-software patent lobby group FFII like the report, saying that it "contains all the necessary ingredients for a directive that achieves what most member state governments say they want to achieve: to exclude computer programs from patentability while allowing computer-controlled technical inventions to be patented." The Directive will have its second reading on July 6th."
*shakes fist*
Does this mean that a computer simulation of a patented product or technique would be legal?
Bidding can now start...
to exclude computer programs from patentability while allowing computer-controlled technical inventions to be patented.
They sound like one in the same to me. A computer controls my web browser and it certainly is a technical invention to *some* degree. So this would enjoy patent protection and it wouldn't at the same time.
Or are they just trying to talk about heart-beat monitors and stuff like that ? They should be more clear otherwise it sounds like a recipe for disaster.
Hooray for the French!
/. can overcome their indigenous [and irrational] anti-French sentiment)
(this post exists solely to see if the Americans moderators on
I remember Rocard carricatured as a Crow in a French Political Satir Show in the end 80's....
Thanks Michel, from a guy that cannot do anything against SP in EU (i live in a non-member country of the EU, but in the middle of Europe, and we conclude some "billateral" so we will depend on EU SP politic)
Agree or not with his past politics, there is no doubt in my mind that Michel Rocard is one of those extremely rare honest politicians. As soon as I had heard that he would be the "rapporteur" for the software patent directive, I breathed a sight of relief. There is light at the end of the tunnel.
I'll do it for cheesy poofs.
A former prime-minister who can understand the Open-Source and IT, it only deserves respect !
...be a good day. First India, then EU. When is Canada joining the club?
Can someone please explain how he distinguishes computer controlled technical inventions from "computer programs"? I really see no particular distinction. The difference between the term 'computer-controlled' and 'computer-implemented' to me seems to merely be an issue of semantics.
Perhaps there's some particular scientific viewpoint he has in mind.
FTA:
"Rocard explains the difference between applied natural science and data processing."
I'm still unsure as to what it means.
The report will certainly have some influence, but that it is very anti-patent is not surprising considering that Michel Rocard has been one of the leaders of the anti-patent side in the EP since the beginning.
The real question is wether he can use his significant influence in the EP (he is without doubt one of the political heavyweights there) to convince the many MEPs not very committed to the matter that it's worth picking a major fight with the Commission and the Council on. I wish he can, as much because I want software patents banished from Europe as because I want to see the EP extending its influence at the expense of the Commission and the Council.
Good luck, Michel, and thanks!
What do you know about World Politic? Find out in this quiz
Copyright sure, Trademark sure, Trade Secret same again. Patents, no valid empirical basis in reality (other than entrenched intrest) why these should be recognised.
Not all conservatives are stupid,
but it is true that most stupid people are conservative.
- Hume
He is the European Parliament's draftsperson or "rapporteur" on the directive, and so it is likely that his views will be taken very seriously.
Since when did the European Commission take the European Parliament seriously? Can't see this making much difference myself, so I won't be getting my hopes up just yet.
Thank god atleast some political figures can't be bought off . .
(or atleast got bought off by someone i agree with for a change (Joke) )
as the Rapporteur his word will indeed hold a great deal of sway , lets just hope the money of the Software Patent lobby does'nt hold a greater ammount of sway
This does not by any means confirm we have won this yet , I would ask people to write to their MEP (member of the European parliment) and urge that they Read this recomendation and also show your support
(if your anti all patents , then still support this as well , one brick at a time).
Democracy requires that we all do our part and make our voices heard .
The only things certain in war are Propaganda and Death. You can never be sure which is which though
IMO, EICTA's characterisation in the paper of how the proposed "controllable forces of nature" test was received at the recent UKPO worshops is highly misleading.
... that the EU will soon follow the example set by India?
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# I am interested in how many here can read français? Je un peu... Legal Affairs Committee 2005-04-13 Working Document sur la brevetabilité des inventions contrôlées par ordinateur (2002/0047 (COD)) Rapporteur: Michel Rocard Le conseil des ministres a enfin adopté une position commune sur la brevetabilité des inventions mises en oeuvre par ordinateur pour permettre que se tienne le débat en deuxième lecture. Cinq états membres ont voté en faisant savoir par écrit qu'ils votaient pour débloquer la procédure, mais qu'ils souhaitaient voir le texte modifié par le Parlement. Notre désaccord du premier tour a été entendu. Ce texte est essentiel aussi bien économiquement (quelques dizaines de milliards d'euros annuels sont en jeu) que politiquement ou philosophiquement : il s'agit du statut de la diffusion du savoir et des idées dans la société. C'est un texte court, mais portant sur une matière extrêmement complexe. Depuis deux ans qu'il est en débat, il apparaît clairement que dans la difficulté à trouver des solutions consensuelles, les désaccords sur les définitions et les malentendus sont beaucoup plus importants que les désaccords sur le fond. J'ai fait établir une note d'analyse du sujet précise et détaillée. Elle est longue. Au moment où je vous écris cette lettre, je ne suis pas sûr de pouvoir la faire traduire en anglais. J'espère pourtant vous la donner à tous en français et en anglais. Mais en fait, pour le débat sans texte du 21 avril à Bruxelles, je préfère, avant de déposer officiellement mes propositions d'amendements, vous proposer de réfléchir ensemble au problème qui nous est posé, et à son traitement intellectuel. Car dans ce texte court, nous n'avons en fait que deux problèmes sérieux, susceptibles de nourrir un conflit avec la Commission et le Conseil : celui de la délimitation de ce qui est brevetable et de ce qui ne l'est pas, et l'interopérabilité. Si le Parlement et finalement le Conseil suivent les orientations que nous leur proposons, le problème de l'interopérabilité se trouvera réglé de ce fait. Il faut donc commencer par s'occuper de la délimitation. Quelle est la question ? Elle résulte de la contradiction entre le système légal et la tradition héritée d'une part, et les besoins de rémunération des investissements et de sécurité de la grande industrie appuyés par les dérives récentes de la brevetabilité aux Etats Unis, et dans une moindre mesure à l'office européen des brevets, d'autre part. Tous nos systèmes légaux, et surtout la Convention sur le brevet européen signée en 1973 à Munich établissent clairement que les logiciels ne sont pas brevetables (art 52.2. de la CBE). Or il existe plus de 150000 brevets de ce type aux Etats Unis, sans base légale et de l'ordre de 50000 à l'Office européen des brevets, à base juridique incertaine et inégalement valides devant nos droits nationaux. Le développement foudroyant de l'informatique s'est étendu depuis vingt ans à toutes les branches de nos industries et de nos services. Au delà des usages professionnels, il n'y a plus un objet de consommation courante qui ne comporte de logiciels intégrés : voitures, téléphones portables, télévisions, magnétoscopes, machines à laver, commandes d'ascenseurs, etc. Tout cela coûte cher à mettre au point. Il est normal, et souhaitable, que l'industrie puisse breveter les résultats de ses investissements pour en assurer la rémunération et les protéger de la contrefaçon et de la concurrence déloyale. La régulation des procédés physiques mis en oeuvre au sein des
The paper is available here.
It is interesting because it shows that forbidding software patents is non-trivial. In particular, it raises interesting questions:
- What is the boundary between patentable and non-patentable (how do you define it in such a way that it doesn't have side effects on other industries)
- What is the "technical domain" that should be patentable
- If sofware is _part_ of the patented process should it be allowed?
It looks a little bit like "One man to rule them all" for the moment, at least given the news I see... But many people agree with Rocard, in France, even if this kind of information concerning patents is not often given by media. He's part of the politicians we like, here, as well as Delors, Badinter, ...
But will it be enough? This document is full of logic, justice and decent values. That is not what the US IT industry who is pushing for software patents is well known for.
So will Wall Street win in the end?
This is a great document but it is not over yet.
realkiwi
English language version of Rocard's paper is here
...this is good or is bad? Damn, my knowledge is based in what /. considers right or wrong, if you don't say me what I've to think I don't know what to think!
But it is only a small victory in a large battle where the other side has won many victories too.
Working Document
on the patentability of the inventions controlled by computer (2002/0047 (COD))
Rapporteur:
Michel Rocard
The Council of Ministers finally adopted a joint position on the patentability of the inventions implemented by computer to allow that the debate in second reading is held. Five Member States voted while letting know in writing that they voted to resolve the procedure, but which they wished to see the text modified by the Parliament. Our dissension of the first turn was heard.
This text is essential as well economically (a few tens of billion annual euros are concerned) that politically or philosophically: it acts of the statute of the diffusion of the knowledge and the ideas in the company.
It is a short, but bearing text on an extremely complex matter. For two years that it is in debate, it has clearly appeared that in the difficulty of finding solutions consensual, the dissensions on the definitions and the misunderstandings are much more important than the dissensions on the bottom.
I made draw up a note of precise and detailed analysis of the subject. It is long. At the time when I write this letter to you, I am not sure of being able to translate it into English.
I however hope to give it to you to all in French and English. But in fact, for the debate without text from April 21 in Brussels, I prefer, before depositing my proposals for an amendment officially, to propose to you to think together on the problem which is posed to us, and of his intellectual treatment.
Because in this short text, we have in fact only two problems serious, likely to nourish a conflict with the Commission and the Council: that of the delimitation of what is patentable and of what is not it, and interworking. If the Parliament and finally the Council follow the orientations that we propose to them, the problem of interworking will be regulated of this fact.
It is thus necessary to start by being occupied of the delimitation. Which is the question? It results from contradiction between the legal system and the inherited tradition on the one hand, and the needs for remuneration for the investments and safety for the large-scale industry supported by the recent drifts for the patentability in the United States, and to a lesser extent with the European Patent Office, on the other hand. All our legal systems, and especially Convention on the European patent signed in 1973 in Munich establish clearly that the software is not patentable (art 52.2. CBE). However there exists more than 150000 patents of this type in the United States, without legal base and about 50000 with the European Patent Office, at dubious legal base and unequally valid in front of our national laws.
The striking down development of data processing has extended for twenty years with all the branches from our industries and our services. Beyond the professional uses, there is no more one object of everyday consumption which does not comprise integrated softwares: portable cars, telephones, televisions, video tape recorders, washing machines, orders of elevators, etc.
All that is expensive to develop. It is normal, and desirable, that industry can patent the results of its investments to ensure remuneration and to protect them from it from the counterfeit and the unfair competition. The regulation of the physical processes implemented within the inventions is a very old problem: it took innumerable forms, mechanics or tires in particular. To develop of such regulations, patentable when they were themselves innovating in their realization, was extremely expensive.
To replace by software, whose production and development cost is much weaker, an enormous economy represents.
That pushed with their multiplication.
But a software is of another nature.
It is about the immaterial one.
In fact, a software is the combination in an original work of one or more algorithms, i.e. a whole of mathematical formulas.
However like said it Albert Einstein, a math
[this is my own 'manifesto' to the EU parliament which I have send as a petition and in 'correspondence with EU citizens' as provided by the EU parliamentary site. Though it says they normally respond within reasonable time (to acknowledge they have received it), untill today I didn't hear anything back. also my question about the lack of response came back unanswered. So, I guess I'll have to copy and distribute it personally to 100+ parliamntarians myself, after all...]:
Manifesto on the directive of "computer implemented inventions"
Dear MEP,
As you are probably well aware, soon the EU parliament will have a 'second reading' of the directive for allowing patents on "computer implemented inventions", which, as I will show below, actually amount to allowing software patents (swpat), though this is heavily disputed and denied by the proponents of the directive, including the European Commision (EC).
The way in which this directive has gone through the EU Council of ministers is mindboggling and shows exactly how much the EU has a democratic deficit. Despite the fact there was no real majority for the draft anymore (the change in vote-weight after the enlargement alone accomplished that, apart from a lot of change of minds of some other countries), despite the fact that stringent motions of national parliaments were passed to oblige the national ministers to redraw the proposal as an A-item so that it may be further discussed, despite the fact that the EU parliament and their JURY-commision asked for a new first (re)reading with almost unanimity, the EC chose to ignore and disregard all this, while giving no explanation, apart from "for institutional reasons as to not create a precedent". In other words, the "common position" had to be followed, even though there was no common position anymore, because, aparently, the form is more important then the facts.
This is a stupifying prime example of absurd bureaucratic reasoning and mentality; to give more importance to formality, and to place appearances before the changing facts. Bureaucracy abhors changes, even to the detriment of real democratic values. But then again, maybe this shouldn't surprise us, as the EC is exactly that: bureaucrats, whome were never voted into the position they occupy, yet create laws that could potentially influence millions of EU citizens (to which they do not have to answer to). The EU constitution leaves this democratic deficit as it is, alas. And as seen by the handling of this directive, the deficit is pretty huge.[1]
I will not go further into the procedural mess and the apparent disrespect of the EC for the EU parliament, but rather concentrate on the different aspects of the directive itself (content). I will do this by stating, and then debunking, the rather dubious claims and arguments made by the pro-directive camp, which, alas, also include some misguided MEPs - though I haste myself to say the large majority of the EU parliament is well aware of the facts, as can be readily seen by the amendements made in the first reading.
The following statements for why it is necessarry to have the (current) directive is as follows:
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
2)It is necessary for the stimulation of EU softwarebusiness, so we can effectively compete on the world-market.
3)It is needed for the harmonisation of the internal market, and to retain the status quo. (Similar as the "we do not change the current practise" or the "it will avoid drifting towards US-style patentability" -argument).
I will now debunk all these arguments (sources mentionned at the end of the document) in a rational and clear way, instead of all the FUD currently being made by many of the softwarepatents (swpat) proponents.
1)It is necessary for the stimulation and development of new software, so that IT-companies can be innovative to the fullest of their potential.
--- "To pee or not to pee, that is the question." ---
beware of the pdf.
5 pages of bureaucrat speak i am not going to post on slashdot.
This space is intentionally staring blankly at you
le post parent devrait être moddé +5 funny, c'est tellement ridicule que s'en est drole!
et non je ne suis pas un troll français.
Its a shame this link didn't make it into the original story (it wasn't available when I submitted it yesterday).
The parent post developed another mode, namely +5 funny. The ridiculous telephone, which is cestfully clean, is very droll. And no, Jane is not a troll, she's merely French.
This sig is only here so people stop skipping the last lines of my posts.
here. Its in PDF format, and makes a *really* good read. Rocard outlines the issues with uncommon clarity - if they end up following his recommendations it will restore my battered faith in the European Union.
In the United States, before the State Street Bank case articulated the modern "tangible result" test, our jurisprudence excluded "pure" software as well, but it was a distinction without a difference. Under the test in Alapatt and other cases, so long as you articulated the program in technical terms, you had patentable subject matter. Thus, while you might not have been able to claim:
I claim a method for instructing a computer to perform the steps of A, B and C.
You could claim instead:
I claim a computer system including a general purpose computing component (and possibly other apparatus) and a stored program instructing the general purpose computing element to perform the steps of A, B and C.
or
I claim a medium for storing and retreiving information in electronic form, configured to permit retreival of instructions for a computer system (and possibly other apparatus) to perform the steps of of A, B and C.
While such legal niceties are interesting, they --and tests like them-- are mostly a distinction without a difference.
They voted for bush, therefore they should be placed under a worldwide embargo.
Pah. Shoot on sight I say!
not exactly (or maybe i respond to tr-tr-troll?)
"the the parent post should be modded +5 funny, it's so ridiculous that's becomming droll.
and no i am not a french troll"
I have a request: could you please post the footnotes too?
This software patent decision is going back and forth between the different branches of EU government, if they keep this up, at least they will be too busy to implement software patents... or any other stupid things they would otherwise think of.
I prepared a small legal research. It is based on facts how this legal act was adopted during Irish presidency. It is not finished yet, but may be worth reading for You.
TR
www.rychlicki.net
Donate free food here
First of all: nice read!
;-)
But, you refer to "SME's" a few times but don't say what it is (if an average MEP will know, then it's okay). And there are a few typos and spellos, so you should run it through a spell checker.
Also, you use the term "even when a child can see" -- that may well be, but the tone of word becomes so negative it may put the MEP in an adverse mood. Remember, you have to sweet-talk them *at least* as much as the pro-people do, so you ought to use the most positive language imaginable!
I wish you the best!!
"Good news, everyone!"
The comitee of Legal Affairs, which is responsible for this directive in the European Parliament, has discussed the topic this morning:
Please help to make a transcript on IRC (irc.debian.org #ffii) and on the wiki page.
The comitee of Legal Affairs, which is responsible for this directive in the European Parliament, has discussed the topic this morning:
http://wiki.ffii.org/?Juri050421En
Please help to make a transcript on IRC (irc.debian.org #ffii) and on the wiki page.
The last line of the summary is the deadliest:
... when the use of a patented technique is necessary only to achieve interoperability between two systems, such use should not be considered as patent infringement.
:)
to assure interoperability
I think MS (XML Word files etc) and HP, Lexmark et co (printer cartridges) and lotsa other people who want you to put Ford Petrol in Ford cars are not going to like this
BTW, the summary is concise and extremely clear - I wonder why the parent talked about bureaucratic jargon ?
(pour assurer l'interopérabilité, renforcement de la confirmation des droits découlant des articles 5 et 6 de la directive 91/250, par le fait que lorsque le recours à une technique brevetée est nécessaire à la seule fin d'assurer l'interopérabilité entre deux systèmes, ce recours ne soit pas considéré comme une contrefaçon de brevet.)
This is not a signature.
I refuse to be held responsible for idiotic decisions made by my countrymen
Those who sacrifice security to condemn liberty deserve to repeat history or something. - Benjamin Santayana
While the original report written in french is quite nice in itself the translation resulted in a badly written, erroneous interpretation prone, report...
:D
Anyone wants to help the EP with translations?
PS: I'm neither french nor english, so I'm not going to do it.
You cannot proceed from the informal to formal by formal means
No we didn't. Bush was appointed by the Supreme Court - embargo them... Ok the second time he almost one a majority, but apparently it takes a 2/3 majority to defeat a neocon.
What I find really amuzing is that none of the French people I work with (and there are many) had even heard of the software patent issue. Actually none of the Europeans I work with had heard of it... Yet, and this speaks to the sad state of the US media, they seemed to know all about Michael Jackson and what's-her-name, the brain dead woman from Florida... Maybe that's how 54 million Americans can be so stupid?
Actually, I wrote my thesis on life experience.
What Michel Rocard has done is specify that to be patentable, a software must be controlling the forces of nature. Thus simulations are out, software controlling a robotic arm is in.
... what then?
Light is a force of nature. The process by which pixels are displayed (digital/electrical, or analog/chemical) are forces of nature. Hell, electricity is a force of nature, and the movement of electrons is what defines every action and calculation of a computer.
Seems to me it would be pretty easy to define any calculation as "controlling the forces of nature" and make every possible software algorithm patentable anyway.
It's a good idea, but an unwise comprimise IMHO. Keeping patent moghuls from privatizing and monopolizing knowledge is like trying to hold a flooding river within its banks. Open the dyke just a little as a comprimise and you'll find your town just as flooded as if there were no dyke to begin with. Ditto for making some software patentable. If some of it is patentable, then eventually all of it will be. It will only be a matter of how deep you look into the physics of nature before patents apply. Hell, taken to an extreme, there are even now tentative theories that suggest information itself may well be a basic force of nature
The Future of Human Evolution: Autonomy
well, I have nothing against it on itself, but it's *a lot* of pages and slashdot isn't really meant for that. Feel free to contact me through email, however, and I will send them through.
--- "To pee or not to pee, that is the question." ---
"First of all: nice read!"
;-)"
Thanks! I was planning this for some time, and it's been made weeks ago, but I waited for reaction on the online petition (which didn't came). The real problem is getting it printed/copied 100+ times (700+, so all the meps can be reached would be ideal). Alas, time and money constraints will have to limit it.
The most annoying thing is to get it actually distributed to the meps in question. I'm willing to go to brussels for it, but it seems you have to get permision to enter the mailboxes there. I've contacted the FFII for help in this respect, but they weren't really much forthcomming.
If anyone wants to help me out in distributing the manifesto, feel free to mail me (or do so). I'm releasing this manifesto under the Creative Commons, so use it, and send it as letters to the meps or something! (it's preffered not to mass mail them, however).
"But, you refer to "SME's" a few times but don't say what it is (if an average MEP will know, then it's okay). And there are a few typos and spellos, so you should run it through a spell checker."
Indeed, I have no english spelling-checker. Maybe someone can help me out? As for the SMEs thing: indeed, you are right. I should at least explain the acronym once; not all meps are fluent in english (to use an euphemism), after all.
"Also, you use the term "even when a child can see" -- that may well be, but the tone of word becomes so negative it may put the MEP in an adverse mood. Remember, you have to sweet-talk them *at least* as much as the pro-people do, so you ought to use the most positive language imaginable!
Indeed. I thought I was relatively positive; it's not the parliament that's to blame for the directive, after all, but the EC. But you could be right, and maybe I should formulate it differently.
thanks for the input!
--- "To pee or not to pee, that is the question." ---
How tightly is "controlling the forces of nature" defined?
How about this?
I think that's explicit enough.
And even better, given that Rocard is a socialist... That ought to infuriate the US even more... :) :) :)
to patents, and not the extremist version we see here in the USA.
Kudos!
-- Tigger warning: This post may contain tiggers! --
Patents only work if you can take one out in all of your competitor markets.
If you cannot patent in one country then all of your competitors will move to / come from that country.
A corollary is:
If yours is the only country in which it is legal to have software patents, then your competitors in other countries can take out patents for their products in your country and you cannot compete with them!
hahah.
I love it.
All companies in India and the EU should make sure they take out patents in the US! Ha!
I have read Rocard's report. If the software produces any output to the physical world (such as images or text on a CRT or LED screen) then it is a technical accomplishment. This means it can be patented.
I am aware that there are software products that do not produce visual output (numerical controllers, for example) but these software products combined with machinery are already defined as technical inventions and therefore patentable.
So in essence, it appears to me that this new report actually defines "technical" in such a way that any program would be patentable, if it does anything. A Hello World! program would be patentable, because it produces output to a display device for a user to read.
Nice! Can't wait!
Think of the Irony!
Don't blame me, I voted for Kang!
Stop being pedantic asshats. Add something constructive to the conversation or shut the fuck up!
The problem with your manifesto is that it is far too long for a MEP to read. They get tons of documents to read, and they will surely skip this text as "another one of those". You are better off stating in two hundred words or less what you want them to learn.
That's why I provided the 'conclusions' at the bottom. Those will suffice for the MEPs that only want to have an idea (or the 'bottomline'), while the rest of the document can be read by those that actually find the issue worthy of deeper scrutiny.
That said, one shouldn't underestimate MEPs. I have the optimistic view that many MEPs will actually do an effort when they know the issue is controversial. And I believe, by now, allmost all MEPs are very aware of this particular directive.
--- "To pee or not to pee, that is the question." ---
I know, seriously. I don't watch TV anymore, especially not news. And I only occasionally remember to check news.google.com to keep up to speed. When I went back for spring break a couple weeks ago, the first discussion was like:
"Don't you feel sorry for her? I can't believe it."
Me: "Who?"
Them: "Teri Shivo, you know they removed her feeding tube"
Me: "An old friend of your's you haven't mentioned yet?"
Them: "No! That poor woman in Florida"
Me: "We know someone in Florida?"
Them: "We don't know her! She's on the news. "
Me: "Why is this news? Why do we here in NY even care?"
This is starting to happen to me more often than usual. And I get similar reactions when I bring up issues like the patriot act, or DMCA, or the police tracking device on cars issue.
This post spell checked by ASpell.
Opera, Proxomitron-Grypen,GPG 0x0A1C6EE3
I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored and violated, namely that all software algorithms were to be treated as "familiar prior art" for all patent purposes. You cannot "invent" math and math algorithms any more than you can "invent" a new number. You cannot "invent" mental steps.
For patent purposes any "novelty" and "nonobviousness" in math and software does not exist and contributes nothing to satisying the criteria for actually having an invention and for patentability.
The Supreme Court also says in that ruling:
The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance.
State Street Bank directly violates this. The math processes in the patent application are to be treated as familiar prior art, and there is absolutely nothing inventive about using a number as a dollar value. That is about as "insignifigant post solution activity" as you can get.
The Judge in State Street Bank decided he wanted to revers established US patent law and force the US patent office to issue software patents (all the while the US patent office was arguing in court that software is not an invention and that the US patent office was going to be incapable of handling software patent in any reasonable manner) and the judge did so in violation of Supreme Court law and contrary to the patent laws of every other country on earth.
And guess what? The US patent office was right, they were indeed incapable of handling software patents in any sane manner.
I say the only reason the State Street Bank decision is still standing is because the US Supreme Court has been to busy with civil rights cases and unconstitutional law cases and hasn't taken the time to bump one of those important cases off the docket to review a stupid patent dispute in the last 24 years. I say State Street Bank gets overturned and all US software patents get nullified the moment the Supreme Court finally ends it's 24 year neglect of patent law. And if the EU rejects software patents I think that will only make it easier for them to go ahead and do so.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Is this an anti-software group that is lobbying to allow software patents in hopes of crippling the software industry, or an group against software patents that is actually in favor of software in general?
There could be anti-french fry groups, anti-white wine groups, anti-road bike groups, etc.
Very good content (if a little long), but there are a lot of typos I would recommend that you correct before sending it.
For instance, 'desastrous' instead of 'disastrous' in a couple of places.
'mentionned' should be 'mentioned'.
'behemots' = 'behemoths'.
'amendements' = 'amendments'.
'independend' = 'independent'.
"[...] the IT-business in the USA bloomed, exactly because *they* weren't patents [...]" = 'there'.
"[...] to some *extend* this may apply to patents [...]" = 'extent'.
"[The polish legal department] confessed it would, in practise, lead to the allowance of all sorts of software, including business-methods [...]" is missing the word 'patents'.
I don't have time to proofread more at this time but try to get someone to have a closer look at it.
Apart of the philosophical point of view and the catastrophic consequence for software SME what I dont understand is how the council vote for something that will cost around 30 billions dollars a year to Europe.
it means it will cost around 100 $ / (year * person) for decades. What is the purpose of that?
So a valid question is : How much did they receive for that?
I m late on this threads but I thinks this is something that must be presented to the "Grand Public"
"Use cases are fairy tales..." I. S. 2005
I direct you to the standing Supreme Court ruling in Parker v. Flook, a ruling which the hjudge in State Street Bank apparently ignored
I am, of course, familiar with Flooks, as was Judge Rich, who by the way DRAFTED the Patent Act. He clearly did not ignore Flook, in State Street Bank, nor did the other judges on the panel. Flook, as well as the other Section 101 cases on point, which apparently YOU ignored, were expressly discussed and analyzed in the State Street Bank opinion, which is a matter of record and routinely available. A thoughtful reader may look there for the rebuttal to this one-sided and overly simplified argument.
The Judge in State Street Bank decided he wanted to revers established US patent law and force the US patent office to issue software patents (all the while the US patent office was arguing in court that software is not an invention and that the US patent office was going to be incapable of handling software patent in any reasonable manner) and the judge did so in violation of Supreme Court law and contrary to the patent laws of every other country on earth.
Hardly impressive argumentation, legal or otherwise. Is it your legal opinion that Flook somehow anticipated and overturned the later court's decision in Diamond v. Diehr? And you mind-melded with dearly departed Judge Rich to determine his intentions exactly when? Did you even read what you wrote, or are you just so committed to the result you would type anything to reach that conclusion?
And, by the way, let us assume you accurately characterized the USPTO's legal argument, what then? How is it possibly relevant (legally or AT ALL) what the PTO is capable of if the Congress passed a law stating that an applicant is entitled to the patent? Wouldn't the Court still be required to call the patent act as they saw it, regardless of this important practical issue?
I say the only reason the State Street Bank decision is still standing is because the US Supreme Court has been to busy with civil rights cases and unconstitutional law cases and hasn't taken the time to bump one of those important cases off the docket to review a stupid patent dispute in the last 24 years
Nah, more likely it is because no lawyer has filed a meaningful petition for cert, realizing that an argument such as the myopic one you presented would be laughed out of court.
Starting with the plain language of the Patent Act, Section 101 expressly and unambiguously provides protection for novel, useful and unobvious methods and apparatus. This is a powerful start for those who would take the opposite position. Against this is a small and certainly vague body of judge-made exclusions and exceptions, much of which came from pre-Federal Circuit district court and circuit court law of unclear relevance today. Some good and some bad for your position. The few cases most squarely on point -- and yes, the Supreme Court cases are controlling of course -- lead to varying conclusions and uncertain application.
Gottschalk and Parker are part of the story, but you can't discuss them in a vacuum, particularly without looking at the later Diamond v. Diehr case. An argument can be made for the position you are taking, but you didn't make it -- you certainly didn't make it persuasively to anyone not committed to one conclousion.
Software patents as subject matter is as well-settled today as the law is likely to be -- it would be a surprise, indeed, to see the Supreme Court look at this question again directly. More likely, some wild pure business method will come up, and then we may test the fringes of the rule, perhaps with dicta that may inform this question.
In my view, and it is mere speculation on my part -- albeit an informed speculation -- this issue will not likely be revisited seriously by the Courts at the level of the State Street or AT&T cases, at least not until the Congress amends the act in some way to address these issues first, for some of the reasons set forth here and others.
Gahhh! I wrote an entire post and hit 'preview' and my computer blew up. I have to start from scratch :/ I'm sorry if I jump around a bit, but I'm too tired and irritated to rearrange the text into ideal order.
I've read State Street and Benson and Flook and Deirh, each of them more than once (plus about a half dozen others), but I've been particularly reading and rereading Deihr. Originally (ages ago) I attacked Deirh a bad ruling... everyone cites it as being pro-SWpat and I believed them. But the more I read Deirh the more I realized that it was actually a particularly challenging ruling to fully grasp, and that it was actually against software patents. It just seems pro-SWpat because it involved software and on the particular facts of the case and on the limited question before the court they did not strike it down. A misleading result.
Deirh was a 5-4 decision, and while I know the minority position is not law it is integral to understanding exactly where the majority and minority differed and particularly important to understanding the part of the majority ruling (which is law) where they address the minority oppinion.
If you look at the 4 judge minority they are most emphatically opposed to SWpats, opposed to anything that might be seen as opening the door to SWpats.
The majority reply is is most interesting. The majority doesn't say they are pro-SWpat. The majority says that the minority's fears are unjustified, that the majority ruling does not do what the minority fears it would do, it specifically WARNS that the majority ruling should not be misapplied in the way the minority fears it may be missapplied. This is the exact warning that Bank Street violated.
In Deirh the majority warns that "insignificant post-solution activity will not transform an unpatentable principle into a patentable process. To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection." In Deirh they were addressing an industrial rubber manufacturing process - signifigant post calculation physical activity. Bank Street driectly violates this warning. In Bank Street there is no signifigant post solution activity. The only "post solution activity" is to call the number a a dollar value. Bank Street allows a compentent draftsman to violate the limitations on subject matter eligible for patent protection. Under Bank Street, absolutely any software can be claimed as running on ordinary hardware, and virtually any numbers can be claimed as 'useful'. Deirh absolutely rejects this result. Bank Street does not pass 101 subject matter muster. The Deirh case did pass 101 because it it actually claimed a physical industrial manufacturing process.
Just look at Bank Street in light of Benson:
A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.''
Transformation and reduction of an article ``to a different state or thing'' is the clue to the patentability of a process claim that does not include particular machines.
Calculations are not a process within the meaning of patent law. Software is not a process within the meaning of patent law. A process is a physcial process on a physical article. A logical calculation on a number is not a process. Bank Street does not involve a process at all.
The Deirh case and the Bank Street case were also missleading. They only address 101 issues. In fact the Deirh majority points out "We have before us today only the question of whether respondents' claims fall within the 101 categories of possibly patentable subject matter." The Deirh majority also specifially points out "In this case, it may later be determined that the respondents' process is not deserving of patent protection because it fails to satisfy the statutory conditions of nove
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
So.. does that mean they're a patent lobby group that's anti-software?
Confused,
"Nine times out of ten, starting a fire is not the best way to solve the problem." - my wife