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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.
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.
The reason software patents should not be allowed is because computers, and therefore software, is still a nascent field. Sure it may be 50 years old, but compared to construction engineering, which goes back thousands (even if it hasn't always been called construction engineering), it is new. For any doubters out there - compare the error rate in software compared to the error rate in construction engineering. If bridges had the same reliability software has, no-one would ever use them.
What is the significance of this? Nascent fields have what are called "lockean blocks". A lockean block is a basic piece of knowledge that underpins a particular field. Without certain fundamental knowledge of building methods, materials (physics in the modern case), you can't operate effectively in construction engineering. For this reason lockean blocks should not be patentable. To block access to fundamental knowledge in a field, will impede the development of that field. The patent system acknowledges this with its criteria of "non-obvious".
The problem with lockean blocks is that they can really only be identified once a field has matured. Until then there is a very real possibility that a lockean block will be patented. In other words because software is a relatively new field a patent examiner cannot identify what is "non-obvious" because we haven't quite worked out what obvious is. For this reason software should not be patented.
In 100 or more years, the software field will be very different. It may even be possible that software works with the same kind of reliability buildings/bridges/automobiles (well hopefully better than automobiles). Perhaps then we might be able to distinguish between a fundamental building block in the software field and a true software innovation worthy of a patent.
In summary, software is a field that is not yet mature enough for patents.
For anyone interested in reading about the lockean block concept (though not as it applies to software) have a look at:
Suthersanen, U. 1997. Exclusions to Design Protection - A New Paradigm. Chap. 1 of: Sterling, A. (ed), Perspectives on Intellectual Property Vol 2: Intellectual Property and Market Freedom. London: Sweet & Maxwell.
I come from a LAN down under
Where the packets flow and routers chunder