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.)"

Comments

Oh no.

[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..."

Re:Oh no.

[NickFortune]

They just have to word the laws right. Something along the lines of under no circumstances whatsoever shall patents be granted software, algorithms, business methods, or mathematical expressions, techniques or constructs.

Do they really need a gathering of lawyers to come up with that? It's not exactly rocket science.

This sounds more as if they're calling for a discussion on how to write pre-broken leglislation with full of carefully hidden loopholes. For something like that, I expect you'd get a lot of lawyers for a bash like that. Most of them with chequebooks to make sure the legislators were receptive to their clients views.

Not that I'm cynical or anything. I just don't see the difficulty in drafting such a law unless you're planning on adding "just kidding" on the end and hiding it under a pile of legalese

Re:Oh no.

[Bozovision]

Language like this is already present in the European Patent Convention. It says

European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

There is no definition of what an invention is or is not. However, article 52(2) provides a list of things that "in particular" shall not be regarded as inventions (suggesting there might also be other things that are not inventions):

1. discoveries, scientific theories and mathematical methods;
2. aesthetic creations;
3. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
4. presentations of information.

However a little further on it says of the above text:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

That "as such" has proved to be a large loophole which patent seekers have used.

What do you think it means?

Re:Oh no.

[NickFortune]

That's what I mean by a "just kidding" clause. If they wrote it clear and simple without qualifiers there'd be no loophole.

Re:Oh no.

[oren]

Stop the bullshit. Software should not be patentable, not pure software, not embedded software, NO software.

First, it is simply impossible to draw the line between a pure software patent and an embedded one, and between an embedded one and a pure hardware patent.

Second, in this view, the RSA algorithm is not patentable - a brilliant piece of work by three top-rated minds solving a well-defined problem which has defied solution for several years. In contrast, the simple insight that in an inkjet printer, printing speed is doubled if printing is done on both the left-to-right motion and on the right-to-left motion is patentable. This is ridiculous.

The problem isn't software patents vs. hardware patents, the problem is bad patents vs. good patents. Despite the best efforts of the PTO, the current mechanism for filtering patents has collapsed. As a result, we are flooded by "bad" patents. True, most of these are software patents, but that's besides the point.

The law should not be modified to forbid a certain type of patents - be it either software, hardware, wetware, business, design or whatever. It should be modified to raise the bar on patent "non-obviousness". This isn't a trivial change in the law (and the patent granting process), but it is doable. As long as this core issue is not addressed, we'll keep being flooded by bad patents.

Re:Oh no.

[elgaard]

>First, it is simply impossible to draw the line between a pure software
>patent and an embedded one,

>and between an embedded one and a pure hardware patent.

No, that line can be drawn: Software is something that can be stored on CD, emailed or downloaded from a webserver. Software can be distributed, sold etc without violating any patent. That is, if you can produce hardware and put the software (e.g, firmware) on a CD in the box you do not have to worry about patents for that software.

==
Second, in this view, the RSA algorithm is not patentable - a brilliant piece of work by three top-rated minds solving a well-defined problem which has defied solution for several years.
==

A lot of brilliant mathematical work is not patented. Do you think Rivest, Shamir, and Adleman would not have worked on this if it was not patentable? They even published it the year before applying for the patent. And they did not invent it out of nothing. It is not that different from the earlier Pohlig-Hellman private key algorithm.

Re:Oh no.

[Alsee]

Fine. Can I patent a device that includes software?

Can I patent a device that includes a one hundred digit number?

Of course, however only if the devide itself is an invention. Adding a one hundred digit number cannot turn a non-invention into a patentable invention.

A one hundred digit number may certainly be "new" and never before seen, a one hundred digit number can certainly be non-obvious. A one hundred digit number can even be useful. However a number is not an invention. Software is not a feild of technology. Software is a field of mathematics.

At what point did the software become "embedded" into the device and hence patentable?

Never. The object itself (assuming it is infact an invention) is what is patentable. Adding software to it does not remove it's patentability.

Patents are for:
(1) novel non-obvious and useful phyisical objects, and
(2) novel non-obvious and useful physical processes.

You cannot invent a number. You cannot invent logic. You cannot invent calculation. You cannot invent a mathematical equation. You cannot invent a mathematical algorithm. You cannot invent a sequence of mental steps.

A calculation is not a "process".

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Isn't this what was "agreed upon" the first time?

[rsborg]

According to TFA, there will be a public hearing on Monday, so those of you who can go, please do! (I'm sure the FFII will be there, but the more the merrier).

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.

Will this really do anything?

[Shivetya]

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.

Re:It's

[pesc]

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.

Please RTFA !

[Joh_Fredersen]

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 !!!

Fox guarding the hen house

[Sanity]

the European Parliament (EP) has enlisted the help of intellectual property lawyers to amend the directive on the patentability of computer-implemented inventions

This could go either way, IP lawyers have a habit of wanting to extend patentability to everything that moves (a variation on the idea that, to a hammer, everything starts to look like a nail), so this could be a case of the foxes guarding the hen house.

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.

why not just set realistic expiry ?

[Sq]

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.)

Re:Devil's Advocate

[Lifewish]

The problem with patents is that any areas they're applied to will tend to gravitate towards a natural lifecycle identical to the patent lifetime (17 years, iirc).

In industries such as, say, grand piano making, where the natural product lifecycle is very long, patents give an effectively zero window of opportunity - they just don't last long enough to be worth getting. It could be argued that in this case patents don't put enough stress on the industry.

In industries such as bioresearch, where creating new products is very costly, the tendency is to just produce knock-offs. As a result the natural product lifespan is probably in the region of 30 years or so (after that the drugs will cease to be effective or will have been surpassed by academically-researched alternatives). In these industries patents give a medium-length (relatively speaking) window of opportunity for getting ahead of one's competitors, thus encouraging innovation. The stress that this puts on the industry speeds the average product lifecycle up to approach the lifetime of the patent.

In the software industry, the average product lifecycle lasts for somewhere between 1 and 7 years - call it 3 years. The lifetime of a software patent is almost 6 times that. In such a fast-moving industry, this is an effectively infinite window of opportunity, resulting in companies theoretically being able to get a big heap of patents then sit back and relax (or fail to get patents then die). The stress that patents put on the software industry is thus misdirected towards lengthening rather than shortening the product lifecycle, and just results in lots of protesters rather than any actual progress.

I would accept software patents if they were of duration = 2 or 3 years, but then they'd be so short that, given the speed of the patent system and legal system, they wouldn't be worth filing for. Anything longer than that and they can only be harmful, with progress proceeding despite patents rather than because of them.

Shouts to Clausewitz for the "stress" metaphor.

Propaganda slipping into the article

[Alsee]

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.

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