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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.)"
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.
Absolutely nothing? That's far from the truth.
http://www.krysstal.com/inventions.html
Prior to the mid-19th century, inventing was known as "helping human-kind" instead of the a path to fame and fortune.
This slashdot-related signature is a stub. You can help kihjin by expanding it.
What about one-click? That could be a business process. Are those patentable in the EU?
According to the European patent convention, neither software nor business methods can be patented. But the patent lawyers work with the Patent Office to bend the rules and grant the patents anyway. So this is an established praxis. Now they want the politicians to turn this praxis into law so that the patents that are already granted gets a firmer foundation.
About the Amazon patents in Europe
About the EPC (European Patent Convention)
)9TSS
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
Erm. That was a joke.
It's been moderated Troll at least once, so it might have been a disastrous failure as a joke, but it was a joke. I was trying to point out the idiocy of the "no patents = no innovation" arguments that some people (i.e. corporations with massive patent portfolios) sometimes try to spin on people.
It was a double joke, as it occured to me that many slashdotters are so ignorant of history, that they seem to belive that everything important was invented in the USA in the past 75 years.
Athletic Scholarships to universities make as much sense as academic scholarships to sports teams.
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.
So graphics algorithms used in ordinary computer software (say, Photoshop) would not be patentable, but using the same algorithm in a printer driver (which controls hardware, namely the printer) would be?
The Tao of math: The numbers you can count are not the real numbers.
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
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
Lack of patents and copyright is the primary reason why absolutely nothing was invented prior to the mid-19th century.
Not as funny as you think. Stuff was invented, sure, but it was also often forgotten, because without patents, the best way for the inventor (or his sponsors) to personally benefit from the invention was to keep it secret as much as possible.
And the general speed of technological development has been MUCH faster after the introduction of patents compared with before. It's unlikely that patents were the deciding factor in that, but rather more unlikely that they had no part in it.
The illegal we do immediately. The unconstitutional takes a little longer.
--Henry Kissinger
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
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?
Funnily enough, if you look at the statistics, the highest correlation factor with numbers of patents granted per country is actually divorce rate (according to stats found at www.nationmaster.com).
One can wonder about cause and effect for that one for a while...
Many correlations for patent grant rate are similar; the effects of a dense legal code.
High correlations with technical achievement or innovative competetiveness tend to be communications infrastructure and education level.
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...
The problem isn't software patents vs. hardware patents, the problem is bad patents vs. good patents.
Change that to read "the problem isn't only software patents..." and I might agree with you.
That's your opinion, and you are of course entitled to hold. Well so long as no one else patents it, anyway. Once ideas such as algorithms are patented, how long before someone looks to push the envelope and extend it to other ideas.However, to address your point, I have my doubts about simply raising the obviousness bar. The current requirement it that a patent be "innovative" and "non-obvious". That's not "quite innovative" and "fairly non-obvious" you'll notice. These are absolutes. To seek to change the law in that direction would be like trying to make it "more impossibler" to get bad patents - it would both miss the point, and have no discernable effect.
Don't let THEM immanentize the Eschaton!
Actually not, the original idea of patents was to discourage people from maintaining trade secrets and encourage the free exchange of information. Ellis and Cocks never published.
The problem with the patent system is that it is no longer meeting the original aims. I have been asked to remove innovative concepts from several of my specs just in case they might be patented. At last count there are something like 100 US patents issued where other people make retrospective claims to work I was involved in.
The US system is especially broken. One of the real problems is that unlike every other country an applicant is allowed to backdate his claim to a year before the filing date. So a corrupt applicant can read something on a mailing list, apply for a patent and then sue and the defense has to come up with prior art that was published a year before the original post. This type of corruption is not unusual, it is routine.
Don't judge the whole patent system by the corrupt US system. Software patents are not inherently wrong, the problem is that there are simply too many trivial patents issued for obvious ideas. The idea of taking a long established business process and taking it to the Internet should not be considered patentable.
Also the legal process for deciding patent claims should be made much simpler and put a much higher burden of proof on the plaintif. It should not cost $5 million to get a patent case dismissed. Plaintifs should be required to state in their initial claim exactly how the defendant is alleged to infringe the patent and the specific patent claims being infringed. I am currently answering a claim involving a patent with about 60 claims, the complaint is purely pro-forma and gives no information as to even the products that are alleged to infringe.
The othe aspect of the USPTO racket is that it allows claims that are ridiculously broad. The rule should be that there is one standard for interpreting the claims. So if the claim is being interpreted broadly for the purposes of determining infringement it should be interpreted equally broadly for the purposes of prior art and any prior art should demolish the entire claim.
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Try http://dotcrimeManifesto.com/
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