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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.)"
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.
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.
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.
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.
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
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?
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...
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.
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.
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
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.
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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- - 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 ^^;;
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?