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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.
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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.
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.)
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
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!
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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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