Slashdot Mirror
EU to Redefine Scope of Software Patents
karvind writes "According to story on ZDNet, the European Parliament (EP) has enlisted the help of intellectual property lawyers to amend the directive on the patentability of computer-implemented inventions so that companies are prevented from patenting pure software. According to article: "The ongoing argument over patents in the software industry revolves around the distinction between physical inventions that use software -- such as a car braking system -- and pure software." (See also this earlier story about the EU and software patents.)"
Here's me thinking it was about software patents...
Anonymous Coward
Patent lawyers get to write the EU patent laws. I can hardly wait. *Groan*
Stop the bullshit. Software should not be patentable, not pure software, not embedded software, NO software. Patent lawyers have been preaching for years that software is already patentable, you just have to word the patent application right: "A device which uses the following algorithm to..."
If this can be implemented so as to disallow pure SW patents, it will probably be good enough to bring some real sanity back into the patent business. Especially when the WTO has to decided between US-spawned stupidity (one-click) and what the EU doesn't allow.
Make sure everyone's vote counts: Verified Voting
I have no idea how this patent mess will turn out, but it's none the less a Good Thing that they are looking into the issues possibly ahead.
Keeping my fingers crossed...
.: Max Romantschuk
Pure Software seems to be a very very strict definition. Would it catch things like JPG compression which isn't software? After all GIF issues were a royal pain. What about one-click? That could be a business process. Are those patentable in the EU?
I can see many patents getting allowed as weasel speak can turn something into "hardware" or similar quite easily.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
According to the Register:
In normal circumstances, parliament would be restricted to introducing changes it proposed during the first reading. However, because the readings have crossed two presidencies, this requirement has been waived.
Finally, something helpful in the EU beaurocracy :)
So.. it has come to this
Well, the software patenting lobby never uses the phrase "software patents". No, they merely want "computer implemented inventions" to have the same protections as other inventions in the industry. Most inventions produced by industry today have software in it. Like car braking systems. If they can't patent software, they can't innovate in (for example) car braking systems, they say.
The solution of course is to allow patents on the car breaking system. If something novel is happening there (outside of the software) then it should be allowed. It shouldn't matter whether the system is controlled by software or a black box full of small midgets.
Another solution: Allow the patents, but make it absolutely clear that no patent can be infringed on by writing, publishing, downloading or using software on a normal computer.
)9TSS
A good step, but still I have a concern : hardware drivers or software using hardware capabilities.
When scanner, webcam or whatever hardware makers do not want to give their specs, very often an open-source driver is written from analysis of reverse-engineered communication data. If now patents on software are acceptable for "physical inventions that use software", would hardware makers be able to legally block the development of Linux drivers, and thus sue people who simply try to get their devices to work under Linux ?
I am myself concerned, since I write software to use the advanced check functions of some DVD-RW drives... I hope there is an interoperability exclusion, but still I think this is threatening.
We'll probably get something halfway reasonable, after all, we're not americans... ;o) // The AC who doesn't like the US lobbying system, where the highest bidder gets a vote on what laws are passed and what not
Everyone knows that patents encourage innovation, and that without patents, no one will have a financial interest in inventing new things, and so everyone will find other jobs.
Lack of patents and copyright is the primary reason why absolutely nothing was invented prior to the mid-19th century.
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
Not sure I'm following the significance of this. Does anyone know if there's any analysis on this out there for idiots?
In other news the farmer has just enlisted the help of a pack of wolves to enhance the security of his chicken coup. Film at 11.
You've been tricked into believing that patents on embedded software are not a problem. Tell me if you expect the following cases to be treated as pure software and whether you think these cases should be patentable:
- firmware of a WLAN card (modulation schemes, power control, etc)
- BIOS software on standard mainboards
- video cut-station with software implemented controls
The European Parliement (elected by Europeans to function with EU level competence). Has effectively given the bird, to the blatantly pro-Patent the undeomcratic (European Council, various heads of state waffeling about crap). The EP, emasculated the original Patent draft, only to have the Council, make an ever *more* pro Patent document.. bang it's chest and say to the Parliment "Go on... change the text if you have the balls". Turns out the Parliment did have the balls to change the text. Better still, this directive would *eliminate* patenting pure software... so, to the earlier poster who questioned "jpeg" the answer is no... under this proposal, patenting jpeg is out, patenting mp3 is out, patenting the double click, one click shopping or XML is similarly out. Patenting a software controlled system that influences the physical world, like an alram panel, or a mechanism to open/close a garage door with software somehow *is* allowed. Personally, I welcome our new Democratically elected, Representative, Neo Natal Federalist government. But I'm not paying any taxes !!!
OTOH not all IP lawyers are bad, so lets hope the ones being used by the EP genuinely want to do the right thing here.
You said: "Another solution: Allow the patents, but make it absolutely clear that no patent can be infringed on by writing, publishing, downloading or using software on a normal computer."
What's a normal computer?
My PC? What makes it different from my PDA? So is my PDA a normal computer? What makes it different from the dash computer embedded in my car? And what makes that different from the computer that controls the car brakes?
To forestall one obvious answer: if you work on the basis of the number of funtions it performs then you have to define the limits of a function. So my car brake computer stops the car. It also stops skids. Is that a different funtion. Working towards larger functionality: My media-centre records TV, but it also gives me web access. Is that a normal computer?
So what about using the number of tasks/processes/some-other-thing as the measure? Again, where are the boundaries? DOS was a single-process system, but you'd almost certainly say it was a normal computer.
This approach doesn't work because the boundaries are arbitrary if it's not 1 unit-of-distinction. And 1 unit includes what you'd call normal.
Well, Darwin will make sure microsoft will never get a monopoly in the braking industry.
So did you already patent her?
The Tao of math: The numbers you can count are not the real numbers.
Allow patents on a car breaking system? No wonder they failed to introduce a virus onto the Prius - the car obviously doesn't accept unpatented code!
> What's a normal computer?
A normal computer is never embedded.
They do want to allow patents on physical inventions and industrial processes normally patentable which include software components, but they don't want software patents like jpeg, double clicking, online shopping, etc. That is why legal expert advice is needed to get the wording right.
They are not going to let patent lawyers write the directive. They are consulting with legal experts" - certainly with at least some good and honest lawyers and alikes like the ones of the EFF - to make sure that it will be absolutely impossible for the patent office, patent lawyers and big corporations to twist the the meaning of the law to have software patents granted anyway.
Software patents have already been illegal in the EU, even if the patent office did grant them. No company however has to my knowledge ever in the EU tried to sue another company for such software patent, because they know it wouldn't stand in court.
A normal computer is a "general purpose" computer. I.e. not bespoke circuitry (so GPU is not a normal computer).
What's a normal computer?
As with most laws, the devil is in the detail. Law-writers have dealt with this kind of problems before and can do it with computers too.
What I mean is that a PC, a server and a PDA is a computer. A device meant to accept programs written by other people.
Anyway, you can state that the act of authoring, publishing and downloading software is never a patent infringement without defining a "Computer". Only (perhaps) the act of executing software needs such a definition. And by mentioning examples of common computers, running software on these devices could come out clear and be legal.
So I think you can get quite far with this approach.
)9TSS
It is highly unrealistict to expect Patent offices to have enough expertise not to pass stupid patents. As it goes, even if patent is invalid, nobody wants to challenge it as it would bankrupt them in court before they win.
So why not just set expiration of patent to 6 months, with possibility of prolongation for another year if nobody put the objection in the first 6 months ?
Such a legislation might actually have a chance to benefith both the inventor (ok, its employer realistically) and community (as after max. year and a half it will be free to everyone.)
Since the current law forbids the pateting on both software, books and films, but the lawyers and EPO bend the rules to allow the patents anyway, can you now patent your film?
This text is a bit old, but a good read anyway.
Enjoy!
)9TSS
So, an iPod Photo qualifies then.
It's official. Most of you are morons.
That's easy to circumvent though, just use a more PC-like computer and make it removable.
It's official. Most of you are morons.
I'm all for giving more powers to the Parliament at the expense of the Council, but I still do not see what's undemocratic about it: it's made up of ministers from elected governments after all, not nameless bureaucrats! If a national minister, responsible to a government itself responsible to its national parliament has no democratic mandate, who has?
The only thing I really hate about the Council is that it deliberates in private, which if not strictly speaking undemocratic is hardly transparent. Good thing the constitutional treaty changes that (assuming it gets adopted).
What do you know about World Politic? Find out in this quiz
the "as such" clause is currently there, but the EU PTO and a few other PTO's use it to let software patents in.
The patent lawyers want a backdated OK for what they have done.
The people involved in software innovation don't.
Both sides want what is best for their own business...
But the funny thing is how the patent lawyers interpret this exclusion. When it comes to aesthetic creations, they all agree that you can't get a patent on them, because of this wording in the EPC.
But when it comes to computer programs, they claim that the law as written doesn't apply any more. Even though both films and computer programs are part of the same list in the same article in the same international convention.
For a slightly humorous text that explores this inconsistency, and the "as such" loophole in paticular, read Why Can't I Patent My Movie?
It's a funny world.
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
No, she's in the public domain.
If a patent is issued for something that is not simply software, can it be used against something that is pure software?
For example, suppose that someone patents a camera that includes a new and improved method for compressing and storing the image. Suppose that someone else uses the compression technique, whether they independently developed the technique or copied it from the patent, to compress miscellaneous data files. Would that be an infringement on the patent?
How about if images taken with other cameras and in other formats are converted to the compression method and format used by the camera in the patent?
In other words, would it be a patent infringement if only the software portion is used by someone else without using the hardware portion? Are the non-hardware formats independently covered?
To date I have been strongly against software patents, but now I'm starting to wonder. Is the problem with the patents themselves, or merely with the way that they are awarded?
Most people here seem to take it as read that "pure software" should not be patentable. But the "because it shouldn't" argument just isn't good enough, frankly. If we're going to argue effectively against software patents, then we need to back up our arguments with solid reasoning.
To that effect, I'm going to play Devil's advocate and set out the case *for* software patents. Please feel free to attack my reasoning, but only if you can provide valid reasoning of your own, not just "because I think so".
Let's take the example of the car braking system. People say that only the mechanical element of the system should be patentable, whereas the software should be excluded. But the mechanical part is just a few bits of metal, bolted together in much the same way that's been done for 100 years. All the real innovation in such a system is in the software, by far the most complex part of the system. It's here that most of the development effort was expended, and where most of the innovation took place.
Another example: the GIF patents. Sure they were a pain, but what sort of reason is that? Doesn't the invention of a new way to compress data justify reward? If you came up with a way to compress any data to 1% of its original size say, would you be happy to just give it away and get nothing for your efforts?
By witholding patents from pure software, you're effectively stating that there is no significant innovation in the field. That might come as a bit of a shock to many computer scientists. Say someone puts in a number of really late nights, and cracks computer vision. Or develops working AI. Or a significant breakthrough in untrained continuous speech recognition. Are they expected to just give away the answer for free? "It was amazing work, shame they couldn't afford to remain in the field"...
How about the argument that patents on algorithms will turn software development into a trip through a minefield? Well, say you're developing that new braking system. Who's to say that you won't stumble across a number of patents in the design of the mechanical aspects? So why should the software aspect be treated differently?
Couldn't the risk in software development actually be lower, because you could make use of libraries of known patent-free algorithms? Couldn't you even have tools that check if you likely to be infringing on any patents?
Most of the problems people have are with the way that patents are awarded (for obvious things), enforced (submarine patents), or abused (bankrupt you in court). The problem isn't with *software* patents, it's with *patents*. As such, software patents should be allowed, and reform of the patent system should be the priority. People are fighting the wrong battle here.
Well that's about it. Please attack!
That includes your PC, your PDA, but not the dash computer.
A antique DOS box would also be counted. The problem comes with TiVos etc, which basically are general-purpose computers, but not accesible for the "normal" user.
As hardware programming becomes more usual, that's also a problem. Where do you really draw the line between hardware and software with bigger and bigger usage of programmable logic like FPGAs? Or with flash firmware reprogramming?
Basically, there isn't any difference. "Usual" PCs are quite usually used in industrial machinery etc to control them. There really isn't any difference.
The parliament solved this issue, by saying that anything involving forces or affecting "something physical" was allowable, and excluding "mere information processing" by its own clause.
I have a really elegant proof for Fermat's last theorem. If this sig was only a bit longer...
You must be able to describe your invention using words that have existed for at least 20 years.
Can the USPTO even go back from here? What about the tens of thousands of software patents that have been issued already? If software patents were ever reformed, would they be 'grandfathered in' until they expire? I mean people/scum (depending on the situation) may have spent considerable time and money securing each software patent they obtained. What a mess.
I would not allow a patent on software that is based on a previously defined standard. If what you write becomes a standard, well, that is something else. A software patent should really be a copyright. It is not an invention, it is a written thing. Along the lines of: my book is copyrighted but the printing press it was produced on is patented. A software copyright should only be in effect for 10 years. By that time is is probably irrelevant or something better has come along to replace it. This gives the industry time to make the $$$ on the originality of the concept, but allows others to take it further if it is relevant and allow others to create some inovative derivative of the concept.
An embedded computer is not necessarily a computer that cannot be removed, but one that, when [removed|switched off|etc], there is a major degradation in the intended functionality of the machinery which it is helping to control.
This is Slashdot.
If you make a joke, however obvious it maybe that it is a joke, you must say that it is a joke. For example could surround it with tages like , or (if it is at the expense of a group you end it with the word "ducks".
The preferred approach used to be to make a joke that follows one of the acceptable Slashdot templates such as "in Soviet Russia...". However as these have fallen out of use and Slashdot's users have expanded outward and downward even these may be moderated troll.
In short if it is not clearly marked as a joke, how do you expect moderators to recognise it as such? For example, if it was TV there would be some canned laughter to indicate when you should laugh therefore you should use a suitable substitute here.
What do you expect? Intelligence? Literacy?
Do you also realise that by suggesting that not everything was invented in the US in the last few decades, you have probably ensured that a significant number of Slashdotters will have decided you are anti-American, if a few of them have mod points you will get modded down again.
A patent is there to protect an inventor so that he might profit from his intellectual efforts, or in many cases his, results of a great deal of time invested in stumblinbg accrss something through "dumb luck" which is more likely a finally honed sense of recognition built upon said investment coming to play.
Now we get to the gist.
Software as implementation of an algorithm should not be patentable. Said algorithm should only be patentable if it results in a new and novel process or product BUT if it's a process patent, the process must be related to a product AND a product must be more than the look and feel of a presentation.
Thus, a new compression algorithm would be patentable but the presentation of the uncompressed data in a window on a computer screen would not be. The 'one-click' order does not depend upon a novel algorithm so it falls into the presentation category and would not be patentable, although a particularly efficient 'one-click' algorithm might be. Treating a specific sort of information as an 'object' is not novel because many sorts of information might be treated as objects. The FFT is a good example of an algorithm which would deserve patent protection.
Separating algorithms from implementation schemes
makes software patents a lot easier to enforce because the algorithm reduces to a mathmatical formula.
The Sarnoff-Armstrong patent war over phase vs frequency modulation would not have happened as one patent would have been a derivitive of the other. (this problem is not new)
I e-mailed a politician, and she answered that she would allow patents like an oven that can always make the chicken skin crisp.
As I see it, this would be a new invention. Not sure if I would pay extra for it though. And if a new oven that makes other things crisp is introduced, that accidentally also makes crisp chicken, then I am not sure I would call that patent violation.
err why shouldn't that be patentable? It involves a lot of research, in both hard & software combined. It's not smth you come up with after one night of good sleep, it costs a lot of money to get there. No company will invest in such a research if they can't patent it, otherwise another car company just reverse-engineers it's breaking system - and without much efford they would have copied the whole system for a fraction of the price, without a way for the original company of getting any of it's research money back except the stuff they get from selling their own cars... That would be the same as selling a disguised GPL software as closed-source package. Stealing other ppl's work, but then with no possibility to stop them. Patents are there for a reason, only patents applied to software are pure bullshit...
The whole thing about pattents it a fraud by 1000 "very rich people" who want to get even richer by imposing a "tax" on the other "5.000.000.000" people. One of the bigger scams of the century.
And in order to achieve this they hire lawyers, bribe politicians, etc. If patents succeed it will prove that our system is flawed.
Are there patents in mathematics? NO.
Because Fourier, Gauss, Pythagoras, Leibniz, Lagrange, Fermat, etc didn't patent their work, so who are YOU to do it?
Software is closer to mathematics than pharmacology. OTOH patents in pharmacy kill people so they may be in fact even worse!
I would feel a strong moral responsibility to give my work away if I actually developed AI. For one my work would be based on lots of work that has also been given to me free, so I should pass it on. Also something that will be as important as AI should not be restricted to the rich and powerful few.
There is a whole lot of prior art anyway....
And if I did develop AI you could be sure I could get lots of money trouble-shooting them or writing books and debating the christians on TV.
Is there a Bill Gate's Teach Yourself Software Patents in 24 Hours book out there?
"The solution of course is to allow patents on the car breaking system."
I don't know, patenting a a way to break cars seems counter productive to me.
So in reality, the EP should not even be wasting time with the proposal and should just shitcan it and tell the EC and Berlusconi's wife to come back when they can follow the rules.
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
Most patent professionals, whether they work at the Patent Office or for a firm of private patent agents, do in fact have their basic training in engineering rather than in law. The idea has always been that the difficult part of the job is to be able to understand the technical aspects of the inventions, and to be sufficiently familiar with the technological field in question to be able to determine if an invention is indeed new, non-obvious etc.
So the traditional way of recruiting new people in the patent sector always has been to hire an engineer, and give him on the job training for the legal stuff he needs to know. This is different from how it works in for example trademarks, where (nowadays) most new recruits would have a law degree under their belt before they start working at the Patent Office, or for a patent and trademark agent.
Now, considering the quality of the prior art searches conducted by most patent offices before granting their one-click patents, as opposed to the advanced legal argumentation acrobatics required to claim that software can be patented even though the law explictly says that it can't, this may perhaps change in the future.
But at least for now, most of the people that you would spontaneously call "patent lawyers" aren't in fact lawyers at all, but engineers or technicians that have taken a side course in patent law.
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
How about the argument that patents are just plain stupid. An innovation such as the brake on a car leads to another innovation such as holes in the disk for cooler, lighter braking. Most patents are just the evolution of ideas that any half wit with the money and time will think off given the current state of the art. So we are meddling with the market forces of our own evolution and actually holding back innovation for the benefit of a few greedy individuals. Why shouldn't people be able to copy a good idea and refine it further, the first mover has a huge advantage anyway. This is all about greed and not about encouraging innovation. No one would stop innovating if patents were removed, the wealth generated by innovation would simply be distributed more evenly and the pace of innovation would increase as a result. Where would we be now if mother nature had implemented patents?
What I took home from it was:
1. Those seeking patents use the myth of 1 patent per product to their advantage
2. Because software isn't burdened by physical considerations like heat, corrosion, etc software pushes the envelope in a different/bigger way than physical engineering and thus has a net effect of combining more ideas. Note: there is no value judgement here... Physical engineering pushes the limits in a narrower sense but only because it has to account for things like heat, corrosion, etc.
He described a continuum to make this point where pharmaceuticals would be on the end closest to 1 idea per "product" (i.e. a chemical), physical engineering in the middle (e.g. 12 ideas) and software at the other end with like 1000 ideas per product (i.e. word processor)
Consider the following: no proof has ever been established to show that patents makes more innovation possible. Some research suggest the opposite might be true.
In software the opposite has been proved true. Microsoft is the perfect example - they have for the last 10 years often said that they would invest more in research, and yet what has happened is that almost all of the extra research investment is going to lawyers.
Also, if the true culprit was the patent system - why let patents cover MORE things if the system is as clearly inadequate as most people can agree it is.
I considered the problem of accepting software patents and ensuring the patents where in fact proper patents (this part is important, since if this is not done patents ARE a hindrance to innovation and conducting business - and also one of the main arguments for the pro-sw-patent lobby that the european system is not like the american system because we check the patents more thoroughly - this however is sadly less and less true).
To do this my unscientific conclusion was that it would demand so many ressources that the system would only be open to the extremely big corporations because getting patens would be very prohibitively expensive (or the state would pay thru the nose to pay for the patent administration and thus give higher taxes).
I'm not really convinced for the case of patents - but if patents incorporating software was to be allowed by law (as opposed to the current practice in the EU of approving SW patents which by the letter of the law shouldn't be patentable), then at the very least the following 2 things should be applicable:
- Copyright should not apply for the original patented implementation of said invention
- Sourcecode for a working implementation should be supplied and available when locating the patent application
This, at the very least would restrict the patentowner from exerting his patent on related inventions and would also limit the patent to the exact prototype showed - whereas today software patents cover ALL possible implementations of the invention.The most oft used analogies are the car motor analogy where we have gas and diesel engines and one manufacturer can have a patent on the gas engines and enother on diesel engines - where as in software the patent would cover "engines" as a whole, including but not limited to rocket engines, jet plane engines etc.
I don't think that the continuum idea really holds up as a way of differentiating physical products from pure information. A course of treatment may combine many drugs with many different patents covering the tools to manufacture that particular drug, administer etc.. Its just a matter of granularity. If the server is the product in question, that may consist of many thousands of ideas, but then so does a car. It would however be an interesting metric to see a table of the actual number of ideas that went into each product.
The problem with this is that it's about use. So the patent gets granted, and you just don't know for sure what it applies to. But it's still a lurking snake in the grass waiting to bite you.
Here's another, still more minimal, protection I'll offer as an alternative:
One of the chief problems with patents in general, and software patents in particular, at least in the US (someone tell me if it's different in the EU or elsewhere, please), is that if you independently come up with the idea, that's considered an infringement. It should instead start to chip away at the notion that this was a powerful and unique idea worthy of protection.
Among other reasons why independent development should not be considered an infringement is that it's easy to see that as the number of patents grows, the amount of ESP required by each programmer is intense. It is not possible to legally make a new, non-infringing thing without knowledge of all extant things that might be infringed. This is a goldmine for lawyers, but an increasing minefield for programmers and builders, and simply makes no sense.
Kent M Pitman
Philosopher, Technologist, Writer
Of course at the time, the guilds would keep such technology secret, so the only their members could profit by its use. Is this what you want to happen with software? It could be done with any software invention that is not obvious to the user.
Part of the idea of patents is that it gives people an incentive to share their invention, rather than keep it secret.
http://www.iipi.org/forums/eucii.asp
"The International Intellectual Property Institute (IIPI) is a non-profit international economic development organization and think tank dedicated to increasing the awareness and use of the intellectual property system as a tool for economic growth, particularly in developing countries."
I think that means that it's a lobbying body for patent law. It's located in Washington DC, which confirms it.
They are in favour of sofware patents.
They want to discuss the issues: http://www.iipi.org/forums/eucii.asp
Please tell them in polite, well-reasoned argument what the problems are with software patents. Rants will not help.
Im glad they saw through that one.
The EPO tried to claim software patents were vital by using the Anti-Lock Braking System as an example. They claimed that without software patents, we wouldnt have ABS.
Glad the EU realised that was utter bull.
So does this take the team that builds VLC player
out of harms way?
Comment removed based on user account deletion
"Sourcecode for a working implementation should be supplied and available when locating the patent application"
The reasoning for this is obviously also so that the invention is in fact public, since the legal lingo in patents is all but useless when it comes to software (atleast for a car engine they need to provide printouts of how to engine functions etc.).
a) The problem: there is "prior art", rocard's definition is widely accepted in patent law and we have no seen a better alternative yet.
b) AIPPI is a lobbying organisation of patent professionals, a "biased" source. Less polite: these are patent professionals who want to change the system for their own benefit, extent the scope of patentability.
My German patent law book says:
A raw translation, probably bad
One must keep in mind, however, that, in the US, at least, there is the notion of "Contributory Infringement." One particular section of US Patent Law provides:
(35 USC 271(C))
So, someone proposing to sell a braking software "mod" for, say, a Toyota which falls under the claimed braking system of Saab (even though the implementation of computerized braking system hardware is different, e. g. different embedded processor architecture) very well might be liable as a contributory infringer, unless he could somehow convince the Judge/Jury that the program "is a staple of commerce".
Then again, what if the person isn't selling the software, but, as a free software developer, just offers it for free to gearheads to mod their own Saabs, Volvos, Buicks, etc? Even if he's not liable as a contributory infringer might the owners of the cars be liable for direct infringement once they do the mod?
Most anti-patent groups accept that the former should be patentable
Excuse me? If a group is SUPPORTING the patentability of certain things, how the hell are they "anti-patent"?
Labeling people opposed to software patents as "anti-patent" is a flat out lie, malicious propaganda. A straw man attack. It's sad to see otherwise good and unbiased reportering falling for it and with their own words unwittingly slandering one side of the debate.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
http://totallyabsurd.com/ absurd inventions? yep lots of them, glad to know software isn't the worse of all posibilities ^^;;
The more convincing conclusion to be drawn by the EP/JURI from the above difficulties of defining "technical" (and related terms) is to avoid getting entangled in such attempts at all - and simply draw the dividing line elsewhere, i.e. in a place where exact distinctions are possible:
There is no difficulty in defining e.g. "algorithms" and "software", so it is much more feasible to eliminate their patentability once and for all as well (imagine Article 52 EPC without an "as such" loophole).
Rather than (vainly) trying to determine which software("-implemented") concepts may be patentable, this foils all attempts to trick patent offices and courts into believing that pure computer code, mathematics or business methods could ever (and "ever more exceptionally", until even "considerations" thereof become patentable, as we have had to witness under the EPC already) manipulate the "forces of nature" at all in a patentable way.
The EP's real risk in playing the difficult (if not inextricable) "defining technicality" game instead is that it may either inadvertently leave yet another loophole somewhere, or experience the effect of this divisive issue by failing to get the required "super-majority" to agree (in time!) on one single "perfect" definition - failing to do which it is procedurally deemed to agree to the dreadful Council draft (Common Position on Second Reading under Article 251 of the EC Treaty).
The more workable way is to draw the line at a different point, i.e. where the framers of the EPC actually put it in the early 1970s, and simply say that "software is not an invention in the sense of these provisions - period." - and then simply clarify the controversial "as such" to mean that no new and inventive contraption (i.e. novel and non-obvious by features other than software) is excluded simply because it uses software internally. From the wording and history of Article 52 EPC, it does appears quite likely that this is precisely what "as such" was supposed to mean anyway.
Do you think that a WLAN card chipset should be patentable if it uses an ASIC but not if it's all microcontroller? What about an FPGA? What about an ASIC that was originally designed as an FPGA program and then produced more efficiently an an ASIC in the devices people buy.
Personally, I think that the right thing is to simply exempt anything running on a CPU which, as distributed, can be made to run different instructions from patent infringement claims. Let people patent compression techniques all they want, so long as the patent is only meaningful against special-purpose devices built for that technique.
Some will say that such rights are needed in order to give artists and inventors the financial incentive to create. But most of the great innovators in history operated without benefit of copyright laws.
Roderick T. Long
If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today.
Bill Gates (1991)
'Who owns my polio vaccine? The people! Could you patent the sun?'
Jonas Salk (1914-1995), who developed the first effective anti-polio vaccine
Software patents go one step further: They withhold all forms of expressions of a particular idea from you. This is why software patents are potentially so much more harmful to our culture than copyright: We all can find different ways of expression, but we all share the same fundamental ideas.
- Markus Brinkmann
"More patents in more industries and with greater breadth are not always the best ways to maximize consumer welfare."
Federal Trade Commission of the USA
I claim prior art - in my own cells.
All your proteins are belong to me.
-- Tigger warning: This post may contain tiggers! --
I'd rather they went a step further and prevented companies from patenting all software, pure or impure.
But since I don't expect they'll ever do that, how about a law that states "software that runs on hardware built prior to the patent application is not subject to the patent."?
-- Should you believe authority without question?
Comment removed based on user account deletion
Comment removed based on user account deletion
Unlike most Lawyers, they can fix their own email.
Sorry about the writing. Robot fingers, you know? Cliff Steele in DOOM PATROL #23
Therefore, it makes sense to have another "line of defense" clarifying the meaning of "as such" to make sure none of the subject matters mentioned in the exceptions can be considered an invention under Article 52 EPC (which makes most software, even if "concealed" as something else, come under one exception or another anyway - business methods, mathematics, mental rules etc.).
In fact, I am not opposed to Rocard's attempt (and previous ones in the same tradition) to try and define "technical" anyway (nor did I advocate a removal of the requirement for a teaching to be technical / have technical effect):
My warning just refers to the risk of relying on the fact that a such definition must be feasible, as there is the other approach (subject matter exception properly construed) of plugging the loopholes for software patents, which is no less consistent with both the Dispositionsprogramm test and the wording of the EPC (as it was meant to be) by the way.
In other words, by Monday all MEPs should be acquainted with the idea that the solution must not necessarily lie in a definition of "technical" that is both brilliant and susceptible of getting a qualified majority - i.e. for the questioning of their experts, they should also prepare (at least as a "backup plan") their set of bullet points on clarifying "as such" (no matter whether complementarily or "instead").
The main thrust should be on throwing out the "(Un)Common Position" - they should be prepared to acknowledge that it may now be beyond repair (at least in a way that quickly finds sufficiently firm majority support), or badly need further patches in unexpected places (e.g. fixing the "as such" bug "as there are exploits in the wild for it" ;->, not just trying to find the omitted definitions of "technical" etc.).
I think the anti-software-patent movement has somehow failed to analyze the problem properly, and the MEPs are confused. While there are some real differences between the field of software and most other fields, these differences do not make it obvious that software patents is wrong.
The matter with the software field is that patents do more harm in this field, but they do largely the same kind of harm as in other fields. The arguments the movement has put forward have failed to convince the MEPs and have sent them reaching for some kind of compromise or Salomonic solution. All the thousands of explanations of why software patents is a bad idea end up being very confusing, because they normally leave the MEPs wondering why those arguments apply only to software and not to other fields.
We pretend that software is absolutely different, but all we can show are fairly relative differences.
The first true problem is that American courts have invented a test of non-obviousness that is very convenient for the courts and the patent offices. Convenient in the sense that you can determine objectively if that test has been met. Unfortunately the test does not test non-obviousness at all. In reallity it only tests a certain form of non-novelty.
The test consists in requiring the combination of two known principles to be "suggested" or "motivated" in some prior art text, before deeming this combination to be "obvious". If no such prior art text can be found, that combination is deemed "non-obvious". In this way almost everything is "non-obvious".
This obviousness test has not been tried in the Supreme Court yet, some twenty years after its introduction. However, there is a case, KSR International v. Teleflex, that may become such a trial in a relatively near future, if the Supreme Court decides to look at it.
Of course, in the name of harmonization, the European patent offices tend to adopt similar criteria; 260 million Americans cannot be wrong for twenty years.
We should formulate this problem clearly. I guess this will convince the MEPs much more easily. For some formulations and arguments, just have a look at http://www.pff.org/issues-pubs/other/ksramicus.pdf . Then we should work out some rather strong formulations of what it means to test for obviousness.
After that the rest is a lot easier. Suppose a method of desalination of seawater required you to add a certain acid three times in half-hour intervals. Suppose this method is patentable according to all the usual considerations. Does that mean that whoever patents it, patents the number three? No. Everyone agrees to that. The number three is not by itself patented. What if you use a computer to help you count to three? Is the process no longer patentable? What ought to be patened is the chemical process. Wether you use a computer to assist you in carrying out the steps is irrelevant. Only the steps themselves are relevant.
In the case of the computer-controlled breaking mechanism, the computer seems to be an essential part, because of its speed. If you were to read the velocity of the wheel's rotation on a digital display, calculate by hand the difference from the previous reading in order to determine if the wheels are about to block, you would probably relax the breaking force a little bit too late. However, the inventors of the automatic breaking system did not invent the computer. The advent of the computer made a large number of obvious applications possible, that had not been possible previously. To realize that, is not a patentable invention, it is something obvious.
Only if the process of the break regulation has a truly novel and non-obvious step, it should be patentable irrespective of whether the invention is computer-implemented. In this way, almost all the fuzz about computer-implemented inv
There is no substitute for common sense. Especially, no body of rules will do.
Please please please will people stop this ill-informed lawyer dissing. Yes I know it's the public stereotype but please hear a lawyer's perspective on this:
Lawyers do not act for themselves. Lawyers act for clients. IP lawyers do not want to extend software patents. Companies that employ IP lawyers do, and as long as the lawyer works on that job he will try and extend software patents. If the next week the law firm is hired by the Free Software Foundation- or the European Parliament - those same lawyers will work just as hard to restrict software patents.
Every time you hear about a stupid lawsuit, remember - there are lawyers working for both sides. Every time IBM chalks up a victory over SCO, it's still lawyers doing the work.
If you're going to draft a law to restrict software patents, who are you going to ask to do it? A geek whose words will be putty in the hand of the next decent lawyer hired by Microsoft, or the best IP lawyer you can find who will know how to make it watertight (until someone finds a better laywer).
Sure, it would be nice if we could all get along without lawyers, but we can't. Sure, there are a lot of dumb lawyers, a lot of unpleasant lawyers. But even so they're just doing their masters; bidding.
So call us intellectual whores, because we sell our arguments to the highest bidder. Call us dogs, because we're loyal to whoever throws us the next bone. Call us amoral, to the extent that we'll work for anyone. But don't call us evil, in the sense that we want any particular dastardly outcome for ourselves. To misuse the cry of the NRA, lawyers don't kill people, people do.
The author of this post asserts his moral rights.
There are many answers whith rebuttals to your "devilish fun". I can mention some of them and leave the rest as an exercise to the interested reader. If you can't come up with some of these yourself, you really need to read more about software patents:
1) Your program is already protected by copyright. No need for patents. Nobody can legally copy your work and sell/use it, because it would be a violation of copyright.
2) You're arguing for stopping others from making their own implementations of the same idea. However, a software program is not like wood and steel. Software is more like a receipe of food. You're saying just because you were the first to create Spagetthi, you should be entitled to monopoly on that. But what do you patent in software? Any patent would have to cover the idea, since a software program is basically just a receipe or mathematical algorithm. Ideas and algorithms are not patentable, and should never become patentable. Anything less is already protected by copyright.
3) To argue that software should be patentable because something else is, is childish and naive. No study supports patents on software, and no serious studies have calculated the optimal patent time, terms and laws. Why should every industry be treated the same. We create laws to fix problems, not create them by being too general. Maybe these other industries should not be patentable either, or different terms would suit them better?
4) Software is not expensive at all. Just because big corporations pay out big bucks for think-tanks, does NOT entitle them any artificial monopoly to maintain their business model. Software can be built by hackers and hobbyist that rival commercial offerings and cost next to nothing to produce. A sane society will support the cheapest way to produce new software, namely software under the GPL-license: Free Software. Software patents threaten this more effective model of creating software, and basically makes outlaws of people who foster a culture of sharing and community effort. Way to go!
5) Software patents rewards the greedy lawyer, not the innovative inventor. If nobody will release inventions and discoveries to the world without compensation, maybe it's time to re-evaluate why you're on this world? To give and share is community, while expecting the world to bend over is pure ego and greed. I pity the souls without any love in them that live like pigs and swine.
6) Your proposal of less time for patents is good. However, experience shows that people will just wait the patent out. People waited 20 years for RSA to expire. Why have patents at all when it does not promote cooperation, development and high sharing spirit?
7) Software has traditionally a culture of sharing of discoveries and standard bodies. Software patents is an attack on this to convert it into the money-game and cash out as much as possible. The focus should be on the love of evolution within the field, not how we can make new cashcows.
There are two statements missing from the "it's not for software" position. If these were added with appropriate legaleese, then things would be fine.
1) No patent, patent claim, or part thereof shall be held to govern the expression of an algorithm, process or procedure as a body of computer code.
2) No program, body of software, or part thereof which is or _can_ _be_ implemented for use on a general purpose computing device shall be held to infringe on _any_ patent.
These two declaratives prevent backdoor patents from being generalized from hardware into software.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
Comment removed based on user account deletion
1) They are _not_ required. Patents are a market aberration that you tolerate in exchange of favoring innovation. If you already enjoy a high innovation rate, why throw patents in the game ? Alternate view is: please show me one single software innovation that would not have been developped without patents existing. 2) They are extremely difficult to review because of the high technicity and the rapid pace of development of software. USPTO/EPO just have no idea of what they are rubber-stampering. 3) They are misused as a tool for big players to agglomerate "patents portfolii" as a strategical and anti-capitalism, anti-free-market weapon against competitors. Deems repeating: software patents are anti-capitalist and anti-liberal. 4) They interact badly with competition policy and antitrust regulation. Even if software patents were a good idea per se, since patenting file formats turns a de facto monopoly into a legal monopoly they should be outlawed since this would outweight any pro-innovation effect by immense anti-competition effects. 5) They are specifically pushed by at least one company to destroy FOSS, which is to date the only way Europe could try to fill its technological gap. So even if they were a good idea, even if there were no antitrust concern, they shall still be outlawed for political reasons.
For that matter, do we need to pretend? The patent lawyers have been asking the question "why is software different?" since the start of this debate. However, the question is loaded. It presupposes that software is in fact the same as hardware, and then challenges us to find reasons why it isn't.
I think we should challenge that presupposition. Show us why software should be lumped into the same category as hardware. People seem to be assuming that because software and hardware both end in "-ware" they are related above and beyond the simple fact that both can be sold. That's hardly a compelling arguemnt.
Neither ideas nor the expression of ideas should be patentable. Computer programs, I would maintain are expressions of ideas, in exactly the same way as books and films and music. In another branch of this thread, Christian Engstrom posted a link which presents this argument better than I can, so I'll just say that by any sane set of criteria, as well as the current law, software should be considered in the sam category as other creative works.
Doing so would prevent neither individuals nor coders from profiting from their labours in this field - copyright law has allowed this and the might of microsoft stands as testament to effectivness in this role. There is no need for software patents to reward individuals.
On the other hand, software patents can be, and are being used in an anti-competetive manner. This alone should win the argument. There is no need for software patents, and furthermore they are actively harmful, QED
Which brings me to the best counterargument to the "tell me why software is different" ploy. Software is different precisely because allowing software patents is demonstrably harmful to the competetiveness of the IT industry, and to the civil liberties of countless software enthusiasts, whilst at the same time being unnecessary to reward innovation in the field. And one of the functions of the law is to draw such distinctions for the benefit of the common good.
So challenge the assumption that software and hardware are in some manner similar -- it's very hard to defend if you get beyond the common suffix. Maintain that software must be treated as are other creative works, show that patents are both unnecessary and undesirable, and point out that the role of lawmakers is to draw such distinctions should they be required, based upon the need and benefit for the community.
That seems clear enough.
Don't let THEM immanentize the Eschaton!
The general public has no idea what program development is like. They do not see it as a form of expression any more than making kitchen appliances would be a form of expression. If our society can live with the restrictions on the kitchen appliance maker's rights to expressions, so it presumably can with restrictions on programmer's rights.
The general public also believes that program development is similar to hardware development they have learned about, like stores about Thomas Edison's countless failed efforts to make a working light bulb. They believe it when Microsoft pretends that without patent "protection" anyone can rip off the results of their research and make competing products at a fraction of the cost. They believe it when the patent lobby says that copyright does not cut it because they need protection of the method, not just a particular implementation.
All these sort of misconceptions make the battle against patents on software much more uphill than it would otherwise be. The burden of proof falls squarly on those who need the public to know better.
I can even imagine campaigning on emotional points that the public can understand, like saying that every time the patent office grants an obvious patent, a tool flies out of my toolchest. Stop the plundering of my toolchest!
We could emphasize that patents properly assigned should not limit others in any substantial degree. They should protect ideas that others would otherwise not have, except after seeing the patent disclosure. Those are the ideas that the society wants to buy from the inventors at an offered price of granting them a time-limited monopoly.
We should explain that many of the so-called novel ideas that today receive patents are novel only because they were not needed before. These ideas have become usefull because of developments external to the idea, like the advent of the computer or of the internet. The reason nobody has implemented the idea before is that it was not practical before, not that it required any intelligence or effort to find it. Such ideas are similar to making a closet that fits in a corner where the walls meet in a 105 degree angle. You don't need to make it until you are called by a customer who lives in a house with such a corner. That should not make the 105 degree closet patentable, and the same applies to all other obvious patents.
Regards.
There is no substitute for common sense. Especially, no body of rules will do.
Once more for emphasis: Ideas. Belong. To. Everyone.
Instead, we should explain that they are not to receive patents because the entire principle of softare patents is bad. That they offer no benefit to society and bring serious drawbacks.Sir, you seem to be arguing that we accept unreservedly those arguments that best support the pro-patent lobby, while advising us to adopt some weak-as-dishwater argument based upon differences as a matter of degree. I cannot help but regard this regard this as ill advised in the extreme.
We have strong arguments of our own, and we would be foolish to abandon them, just as we would be foolish allow the debate to be conducted upon the metaphorical ground of our opponents choosing.
Don't let THEM immanentize the Eschaton!
Another solution: Allow the patents, but make it absolutely clear that no patent can be infringed on by writing, publishing, downloading or using software on a normal computer.
I would tweak this: everything novel and nonobvious should be patentable with the sole exception that one cannot infringe on any patent with any software of any kind. Once you have a computer that is not affected by any patent or has been sold to you under proper license for all patents involved you are demonstrably in the clear. This would make things like RSA encryption and one-click shopping unpatentable while permitting patents on automobile brake systems and cutting edge graphics cards.
I believe that solves the problem neatly and reduces the burden on courts. All you need to do is prove that you don't have any fancy hardware to gain summary judgement against infringment claims. That's how it should be, no?
Not all those who wander are lost.
It may be a nice (if strange) ideal to think that lawyers only have the opinions they are paid to have, but it simply isn't true.
I'm not so sure the actual main "pro-swpat" trap really is where you suspect it. The above FFII analysis correctly contrasts two approaches:
However, the pro-swpat "red herring" rather seems to be the shifting of this debate from "as such" to technicity:
Now it is quite interesting to consider what the EPO president makes of this in the trilateral discussions (in the instance, on allowing even BMPs) in http://www.european-patent-office.org/tws/appendix 6.pdf:
I am a concerned US citizen and I would like to suggest to whom ever it may concern to contact your congress person, as well as the US Congressional European Affairs Committee. I would also like to suggest the following information be added to the videolan.org/patents.html page.
European Affairs Committee Members, Staff and Contact Information
Address: 450 Dirksen Senate Office Building Washington, DC 20510
Phone: (202) 224-4651
Fax: (202) 228-1608
Subcommittee Roster:
Republicans: (5)
George Allen (VA)
Washington Office
Phone: (202) 224-4024
Main District Office
Phone: (804) 771-2221
George Voinovich (OH)
Washington Office
Phone: (202) 224-3353
Main District Office
Phone: (614) 469-6697
Lisa Murkowski (AK)
Washington Office
Phone: (202) 224-6665
Main District Office
Phone: (907) 271-3735
Chuck Hagel (NE)
Washington Office
Phone: (202) 224-4224
Main District Office
Phone: (402) 758-8981
Lincoln Chafee (RI)
Washington Office
Phone: (202) 224-2921
Main District Office
Phone: (401) 453-5294
Democrats: (4)
Joseph Biden (DE)
Washington Office
Phone: (202) 224-5042
Main District Office
Phone: (302) 573-6345
Paul Sarbanes (MD)
Washington Office
Phone: (202) 224-4524
Main District Office
Phone: (410) 962-4436
Christopher Dodd (CT)
Washington Office
Phone: (202) 224-2823
Main District Office
Phone: (860) 258-6940
Russ Feingold (WI)
Washington Office
Phone: (202) 224-5323
Main District Office
Phone: (608) 828-1200