UK Judge: Who needs software patents?

Glyn Moody writes "C|Net has a surprising story about a seminar given by a top judge at the U.K.'s Court of Appeal who specializes in intellectual-property law. According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"

Comments

The tide isn't turning

[Bogtha]

The EU Commission are trying to push through software patents again. There's a write-up on Groklaw. I think their idea is to keep trying again and again until we get sick and tired of protesting it.

Re:tides?

[LadyLucky]

That's not entirely correct. Both the sun and the moon contribute to the tides. While the moon is primarily responsible, the sun has a secondary effect, which causes the spring and neap tides - where the peak to peak variation is maximized and minimized respectively.

Re:There are a few good patents as well

[CastrTroy]

RSA encryption is a mathematical algorithm. You can't patent that. You can't patent a program that implements a mathematical algorithm either (or you shouldn't be able to). I don't think i've seen a piece of software that should be patentable.

Re:Pay for the Progress Bar You Use!

[Jerry Coffin]

While this judge's message may seem absurd, remember to pay royalties when you code a progress bar in your application.

Like most such citations, you apparently have NOT really read the patent claims (or even disclosure) -- it seems to be much more speicific than you imply. As usual, the patent itself contains a discussion of the related art that says: "Users typically need or desire to know the status of such tasks running in the background. Heretofore, this need has been accommodated by displaying a dialog box with a progress indicator on it for one or more background operations (also referred to as tasks)."

IOW, the patent itself openly acknowledges that progress bars (of various sorts) were already well known, and the patent itself is much more specific. In particular, the patent only seems to cover a progress bar that's embedded into a status bar AND accompanied by a button that allows the user to do something that affects whatever task the progress bar is related to.

Say, have any of you Java swing programmers ever typed

JProgressBar myJPB = new JProgressBar();

Hmm...does this embed the progress bar into a status bar and create an associated button to allow the user to affect the task associated with the progress bar?

Because I was thinking of starting a patent lawyer career, [...]

Why don't you start by just being a reasonably well-informed layperson. The first step would be to learn that (barely) glancing at a patent abstract does not tell you what the patent covers. Much like the abstract to a scientific paper, the abstract of a patent gives a minimal description of the general sort of thing that's covered by the patent. Only the claims tell you what the patent really covers.

Re:Pay for the Progress Bar You Use!

[Doctor Faustus]

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.
The temperature of the oven, yes. The temperature of the food, no. Food doneness is usuallly checked by the temperature in the middle of the food: 140-180F for various meats, and a little over 200F for bread.

Re:Fat, Ignorant American Assholes

[Bezben]

Thats funny, I was always under the impression that the US got into world war 2 after they were attacked, a few years after it started... My history has always been shakey though.

MS on patent reform

[badriram]

HEre is what Microsoft is pushing for

Sure it does account for no patents at all on software. It does call for better patent quality, a faster and more open system.

Re:Pay for the Progress Bar You Use!

[tambo]

He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

I don't blame you for not wanting to tread through the law - it's pretty marshy and unpleasant. Even IP professionals consider this to be a rather painful trawl through conflicting jurisprudence. However, the end result is quite clear - and quite clearly not "breaking the law."

The "law" that European patent offices are allegedly "breaking" by issuing software patents is European Article 52(2)(c), which precludes patents for "programs for computers," as well as "schemes, rules and methods for performing mental acts, playing games, or doing business."

However, efforts to seize on this language as a preclusion of software patents in any form is ignorant of European Article 52(3), which reads: "The provisions of paragraph 2 shall exclude patentability of the subject matter or activities referred to in that provision only to the extent to which a European patent application or European patent related to such subject matter or activities as such."

That seems like a pretty vague and unhelpful statement - what does it mean? It means that patent offices cannot issue patents for inventions claimed as "programs," "methods of doing business," etc. In other words, Article 52(2) does not preclude patents on methods that can be embodied as these classes. A method is a method; a method is not de facto a computer program. A method invention is to be judged for patentability on that basis - it cannot be rejected solely because it could be embodied as a computer program, or because it could be used as a business method.

This standard is very close to the U.S. rule. The only difference is that we also do not expressly ban patents for "computer programs." Rather, the U.S. patent examiner looks through the claim language and judges the patent on the basis of novelty and non-obviousness*. As long as the invention is claimed within the "statutory classes" of 35 USC 101, the invention is potentially patentable subject matter.

* It's undeniably true that the USPTO has not done a perfect job of asssessing novelty and non-obviousness. But that's a matter of effective implementation - it's not relevant to how the law should be structured.

- David Stein

Re:Pay for the Progress Bar You Use!

[tambo]

Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.

To be fair, when it comes to software, the USPTO has struggled under two logistical problems:

• It's really tough to find prior art on a lot of software inventions. Sure, patents like Amazon's OneClick method and Compton's "embedding multimedia on a CD-ROM" method are evidence of obviously deficient examination - prior art should have been easy to find. But consider, say, an algorithm embodying a specific video codec - the only instances of prior art might be embodied in closed-source, commercial video players. Short of decompiling and reverse-engineering a bunch of complex software, the examiner is incapable of demonstrating prior art - especially in light of the USPTO's examiner productivity metrics, which severely limit the examiner's time frame for searching and finding prior art.

• The USPTO has been really abused by Congress. They appoint patent administration officers not on the basis of patent experience, but as political favors. Worse, Congress views the USPTO as a cash cow and siphons off its excess funding - thereby depriving the USPTO of funding to improve its examination process (e.g., hiring more examiners.)

It's true that the USPTO could have done better with the resources at its disposal. But it's possible that it just hasn't been given enough resources to meet its responsibilities.

- David Stein

Re:I think this is a good thing

[tambo]

oftware patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want.

Presuming that "here" = Europe, I think that you're not understanding the full meaning of the European Articles in question. It's a common misconception.

You have to read both Article 52(2) (which prohibits patents on "software" and "methods of doing business") and Article 52(3) (which, specifically and literally, limits the exclusion in 52(2) to patents for software and business methods "as such.") In other words, you cannot patent software, but you can patent some other kind of invention - e.g., a useful method - that is capable of expression in the form of software, or that is applicable in business.

This is neither a loophole nor an inconsistency. It is a clear set of patentability standards, expressing a very plain and straightforward intentions of its legislators - to which the EPO has admirably conformed. You can criticize its application or consequences, but you cannot logically construe its exercise as some kind of abuse of the European patent laws.

- David Stein