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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.)"
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
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.
The EP is pushing for the right changes, making it impossible to weasel patents through by using weasel words. We just have to hope they get them through.
So.. it has come to this
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 !!!
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.
However a little further on it says of the above text:
That "as such" has proved to be a large loophole which patent seekers have used.
What do you think it means?
A printer driver isn't a novel and non-obvious invention.
A printer isn't actually controlled by the driver; the driver just 'translates' a, say, Photoshop picture into a printer-comprehensible 'this is what the page should look like' picture. And since patents should not be granted for "the treatment, the manipulation, the representation and the presentation of information through software", that seems to me to exclude drivers altogether.
So.. it has come to this
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.)
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
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.
For the love of God, please learn to spell "ridiculous"!!!