Slashdot Mirror
European Commission Reverses its Views on Patents
prostoalex writes "ZDNet UK News reports "The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law". Politician Adam Gierek posted a question to European Commission asking the institution to clarify its standings on software patents."
Does this mean they reversed last week's decision, or that last week's decision WAS the reversal?
Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"
,/i>
Article 28.1 of the draft Community Patent Regulation provides that a community patent can be invalidated on the grounds that the subject matter of the patent is not patentable in accordance with Article 52 of the Munich Convention (that is, the European Patent Convention). Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.
If the community patent regulation were actually adopted in its current form, one would be able to get and keep patent protection for computer software-implemented inventions in the same manner that it is currently possible under the European Patent Convention.
Unless the Commission is putting for a new version of Article 28.1 of the draft Community Patent Regulation that specifically repudiates the "as such" language in Article 52 of the European Patent Convention, the situation is the same as it ever was.
relevant text of orginal EPO Docs:
Methods of doing business are, according to Article 52(2) EPC, not to be considered to be inventions. Although not explicitly stated, this exclusion is also considered to apply to a wide range of subject-matters which, while not literally methods of doing business, share the same quality of being concerned more with interpersonal, societal and financial relationships, than with the stuff of engineering - thus for example, valuation of assets, advertising, teaching, choosing among candidates for a job, etc.. The term "business methods" has become a generally used shorthand for all of these areas.
Claims for business methods can be divided into three groups:
claims for a method of doing business in abstract, i.e. not specifying any apparatus used in carrying out the method;
claims which specify computers, computer networks or other conventional programmable digital apparatus for carrying out at least some of the steps of the business method ("computer-implemented business methods");
claims which specify other apparatus (perhaps in addition to computers) e.g. mobile telephones.
A sig?!? I don't think so.....
Can EU-based companies then freely do work to interoperate/reverse-engineer things made by the (insane) US software industry? I hope to $DIETY so. This would force the US software industry to actually focus on quality and usefullness instead of paying lawyers to lock the latest trivial feature up in patents.
ERROR 144 - REBOOT ?
European Commission Reverses its Views on Patents
For now. This has gone back and forth so many times I feel like I'm watching a game of ping-pong. There are enough powerful interests involved that this issue that continued vigilance will be required.
The higher the technology, the sharper that two-edged sword.
Well then I hope I'll be the first to exclaim...
BELGIAN WAFFLES!!!
(even though I seem to remember having this stance pretty much all along...)
I have to wonder if the corporate lobbying pressure has shifted as the big players have been hit with more and more patent infringement lawsuits in the USA. Of course the free software complaints must have helped, but I've always had the impression that these bureaucrats listened more to industry.
a,e,i,o,u and sometimes w and y (at be if of up cwm by)
a steady flow of independent innovation pouring in to the UK if they do end up getting rid of the illogical legislation standing in the way of software progress (I will refrain from using the word "innovation").
Microsoft (and anyone else commanding a patent arsenal) are saying the opposite, of course; that the market will shrink, not expand. It sure would be nice to see them eat their words if the UK does continue in a no-software-patents direction and smaller, more inventive companies take advantage of their new freedom.
A good suggestion. I heard, not from the most reliable source, that Microsoft tried to copyright the double click as 'a method by which to use a pointing device to activate a user interface component via the tapping of a button two times by the user' or something similar.
As it was once said:
Any computer program or file, when saved, is a massive binary number set up for a computer to interpret. In effect, this large, multi-million-digit number is all a program or file is. The rest is simply representation and imagination. In fact, that's what "digital" means.
Now, you cannot patent fact, and numbers are fact. I cannot patent the number 7 and sue anyone who uses it (yet), since the number 7 simply is. I didn't invent it, it's always been there (let's not dabble too far into philosophy though), and as far as I'm aware, there is no rule of thumb to say "the number 12 cannot be patented, but the number 110101010111001E3,000,000" can.
Any program or file ever written/saved on a computer can be compiled and decompiled into a giant binary number. (That's simply how it's stored) So technically, by the law that a number cannot be patented, neither can any digital representation of anything.
Does this really factor down into a ruling of whether the size of a number makes it any less a number?
Any idea, typed up, can be reproduced in binary. I don't see what that has to do with anything.
Using your logic, you can put practically any idea down to a single number, via text. You could convert a song into a number or a photo into a number and claim that you're merely telling people a number rather than actually copying Metallica's latest MP3 around.
Of course, you'd be clearly trying to cover something up, and they'd be able to prove it. The law is imprecise at the best of times, so applying strict logic to its potential is like trying to divine a law of how women work.
They're on first.
"I've got more toys than Teruhisa Kitahara."
In the heyday of railroads, new patents were being issued every few hours on improvements in track shape and airbrakes. The parts of the patent system that are broken, or badly in need of a tune-up, are not related to computer programs, they are related to issues of proper review, rational litigation, and what should be public disclosure of licensing, and mandatory licensing.
Patent law actually requires "fair licensing." After all, the whole point of patents was to get inventions INTO the public domain, not to promote monopolies. Its just that courts have long since given up trying to assess fair licensing, so we have forgotten that half of the original formula.
I will create a sig when innovation restarts in the U.S.
By your arguement how can someone make a living writing fictional stories? Are you saying that Agatha Christie should be able to patent the idea of a dective story where all the suspects are gathered together in the room at the end by a solo detective and the murderer is revealed?
Poirot, Miss Marple etc are protected by Copyright not Patents. The same is true of software. Someone can't directly copy your software but they can produce their own implementation aslong as they don't directly copy your code.
I'm still not clear on how if you actually want to make a living selling software you create you can do so without being able to claim an intellectual property right.
Copyright gives you all the protection you need. Branding and customer loyalty from consistently good products and consistently good service will work wonders too.
When all you have is a hammer, every problem starts to look like a thumb.
How about this: put a good GUI on an Open Source program, provide a good manual and sell installation/update/upgrade services?
While real programmers know GUI's and manuals are for sissies, so you must be a fraud to do this, real GUI guys know it's a lot of work and in a lot of ways mean the difference between sale or ridicule...
Disclaimer: I am actually doing this with moderate success. It's still early days, can't say if it's viable.
I think, therefore I am...I think.
Though many on slashdot may claim it is blasphemy to say this, I do not think that patents are nessessarily a bad thing. In fact, I think that if implemented properly, they can help to encourage innovation. The problem with the current US patent system is twofold.a rity/).
One is, as others have said, it is far to easy to get a patent on obvious things. This has been discussed to death so I won't make much more of a point on this matter.
What is a larger problem in my opinion is the length of the patent. 20 years is far too long given the rate of technological progression that we are currently experiencing. Consider how many major inventions were developed between 1986 and 2006. A lot. No, compare that to the number of useful inventions that were created between, say, 1966 and 1986, or between 1946 and 1966. What about between 1890 and 1910. Technological progression is not linear, and the rate at wich technology is developing is exponential (see this article http://en.wikipedia.org/wiki/Technological_Singul
If the term for patents was reduced to, say, 3 years, it would allow companies to develop technologies to profit from their inventions without blocking future innovation too badly.
Other things that might help the software patent system would be to make the patent not applicable until the applicatnt actually produces something that uses that patent. It's not as though someone has to buy millions of dollars worth of equipment to write a program. If they are able to write up the patent then they should be able to produce at least some sort of sample application.
Famous Last Words: "hmm...wikipedia says it's edible"
is like trying to divine a law of how women work.
You think of a man, and then you take away reason and accountability.
Now hopefully, they ban all patents. People shouldn't have the right to own an idea because it's better if everyone can use the ideas that people come up with. Come to think of it, why allow people to own anything? Who needs property rights?
No Sigs!
Copyright and patents are different dude, Metallica's songs are not patented afaik. I get what you're saying, but your crticism is almost as misguided as the original.
http://rareformnewmedia.com/
the letter that is mentioned rips them for saying no to software patents.
so I naturally had to send them:
I just read a news article on Slashdot. http://slashdot.org/
I wish to inform you that I actually agree with your decision, that software patents are not to be issued or respected.
A patent on software is identicle to a Patent on a cook book.
Both are a collection of words used to give directions in accomplishing a specific task.
Since a cook book is not patentable anywhere in the world, software is not patentable, under the existing laws, anywhere in the world.
I salute you for having both the intelligence and courage to set the correct path and walk it, something that other government bodies fail miserably at doing.
Sincerely,
Jaqui
J. Henager: If the average user can put a CD in and boot the system and follow the prompts, he can install and use Linux
Is Mr. Gierek, from Poland, the only brave there??
A patent is an abstract generalisation of an idea, which must have a "technical effect". You can't patent the code "0101111000" but you can patent a "method of counting pips in an apple". You only have to describe an actual implementation as an illustration; the guts of the patent are the "claims" which are implementation-independent.
This is how lawyers patent software in the UK. You patent a "machine" which performs a sequence of steps. Then you can argue later that software running on a computer is an embodiment of that machine and infringes your patent.
I am not a lawyer. I have worked with a few... and helped to patent software. [I'm sorry]
rt
Hey, who ever said there was a living to be made selling software?
You won't earn much money running a pay toilet in a forest. And the people who used to fit oil lamps to horse-drawn carts have had to find something else to do. In 30 years time, there won't be any oil left in the ground.
Fact: you don't have an automatic right to get paid for whatever you do. Get over it.
Je fume. Tu fumes. Nous fûmes!
From TFA: ." (emphasis mine)
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding
So patents can still be granted, but you have to go to court to have them invalidated, a step too costly for most of us. Nice way of weaseling out and make everyone happy for the time being....
What person will donate an airborne act of love?
This blog post from an IP professor in the UK puts things in perspective: http://ipkitten.blogspot.com/2006/05/software-pate nts-will-you-wont-you.html
I recognized that quote... I'm scared...
brussels is in belgium.
liege is in belgium.
waffles made in either of those two places are in belgium.
belgian waffles come from belgium.
everything comes from belgium!!!
You might find that other countries have the technology to make waffles.
Also, french fries come from belgium.
This is all very confusing and pointless.
-1, Redundant please.
I collect quotes from various sources, and one of my favourites says:
"There has grown up in the minds of certain groups in this country the notion
that because a man or a corporation has made a profit out of the public for a
number of years, the government and the courts are charged with the duty of
guaranteeing such profit in the future, even in the face of changing
circumstances and contrary public interest. This strange doctrine is not
supported by statute nor common law. Neither individuals nor corporations have
any right to come into court and ask that the clock of history be stopped, or
turned back, for their private benefit."
- The Judge in "Life-Line"
Very well-fitting to the insightful comment you made.
:%s/Open Source/Free Software/g
YTARY!
Indeed, 20 years ago I wrote a program for a ZX Spectrum that displayed on screen every possible ASCII screen. I never ran the program right through, and got tired of seeing just random junk. However I here by claim that since this time every book, song, computer program, you name it is mearly a copy of the output of my program. Therefore I cannot possibly be infringing on anyone interlectual property. Indeed they have mearly stolen the output of my program.
The problem with the idea of computer patents in my mind is that computer programs are not really part of the universe of physical laws that determine devices and processes that can be created. Computers define a very small sub-universe in which hardware and software severely constrict that which is possible and actually make everything almost obvious once the problem to be solved is clearly stated.
Selecting from the limited possibilities determined not by the general laws of the universe, but by the severely restricted rules of the particular software and hardware being used does not constitute patentable creativity in my mind.
In the severely restricted environment of the hardware and software of the human being, picking one's nose to remove a booger should not be patentable. Neither should "one-click-buying", or "double-clicking" be patentable in the computer sub-universe.
The real problem with patents is one that I would call "lawyer-shock." The extremely egotistical and conservative legal profession was caught by surprise by the explosion of technology and has struggle ever since to deny that computer technology has created an environment in which patent law is, essentially, obsolete. In a mad attempt to assert that what it has created over the centuries need not be modified and therefore the superiority in a valid, overarching, abstraction of the law, and lawyers, is maintained, lawyers have caused absurdities and distortions in science and technology.
Support for my point: "Few lawyers are going to master technology. Instead, they will lecture and write about computer law, relying on 'normal' law and stating vociferously that that is all one needs to know to become an expert. One of the more hilarious events is to attend a prestigious seminar on 'computer law' and sit through two days of people speaking about nothing." Lawrens R. Schwartz, "What You Aren't Supposed to Know About the Legal Profession", Shapolsky Publishers, Inc. 1991. I doubt that much has changed.
E Proelio Veritas.
Though I feel the news are mostly positive, I remain cautious.
;-) ) to the Commission!
But I think this step by the Commission might be a hint of other things to come, namely (for good or evil), that the EU will in fact try to takeover the EPO. At least the upcoming juridical problems are garanteed.
Taking for granted that the Commission wants to clarify software patenteability, we who are against that option can be shure of one thing: all the pro-soft-patent lobbying that was going on at the EPO is quickly going to move (get back
It will be interesting to follow if a directive is issued (directives must be incorporated by all EU countries in their national law, that presently is shaped around the European Patent Convention) that defines different criteria for patenteability that are clearly incompatible with the EPC (both regarding soft-patents and "traditional" patents). Particularly because the current "european patent" is not a patent by itself but a portfolio of national patents issued simultaneously by the EPO.
What can happen is a in-practice removal of power from the EPO since, unlike the Commission, it does not hold relevant "muscle" to enforce its position. While the EPO is sustained by the "benevolence" of the EPC signataries, the Commission can impose sanctions to EU countries if they don't transpose the directive. In practice, we are possibly going to see the Commission pushing away the EU coutries from the EPC and forcing them to abandon it, or else being submerged in a complicated judicial problem involving conflicting internal and international law.
Software patents do exist in Europe. Tens of thousands of them, in fact. They have been, and continue to be, granted by the European Patent Office (EPO) as well as national patent offices (such as the UK Patent Office, for an example).
However, Microsoft, Oracle, SAP and the other usual suspects are unhappy about the fact that most of those European software patents are barely worth the paper their documents are printed on. All patent litigation in Europe goes to national courts. Even if there is an infringement of the same patent by the same infringer in multiple countries, the patent holder has to sue country by country. The national courts look at the applicable national law. So, what does that applicable law say as of now?
All countries that are member states of the European Patent Organization (the international organization that runs the EPO) have signed and ratified the European Patent Convention (EPC), a treaty that was worded in the 1970s. Its article 52 says that "computer programs" (and various other things) are not patentable inventions. But it also says that this exclusion only relates to the excluded subject-matter "as such".
The interpretation of "as such" varies greatly. The EPO believes that a computer program is only a "computer program as such" in the form of source code or object code, on which no one (not even in the US) would want a patent because its scope would be too narrow (for protecting code, copyright does the job anyway). But any concept that can be implemented by way of a computer program, such as a context menu, is considered a technical invention by the EPO.
It's like saying: Once the program actually runs on a computer, that whole computer along with the program running on it is no longer a "computer program as such" and the exclusion doesn't apply. That's the EPO position. It's also the way many national patent offices justify the grant of software patents. However, national courts with their independent judges often come to a different conclusion and throw those software patents out right at the beginning of an infringement litigation.
At this juncture, the real threat is not that the EU would introduce an EU community patent and change the legal framework. The clear and present danger is that the European Patent Litigation Agreement (EPLA) might be ratified. Microsoft, SAP and their usual allies (including the EPO itself) are pushing for this initiative now. That's the one to watch out for.
Patent law actually requires "fair licensing."
When you build something out of belts and pulleys it takes you, at a minimum, months to create a relatively simple device with a few dozen components that is potentially violating a handful of patents, and man-years to set up production and ship significant quantity of product.
When you build something out of software, in a day you can create a "device" that is a hundred times more complicated than that, containing thousands of components and thousands of potential patent violations. In a few hours you've created man-years of work for patent lawyers if you want to make any kind of reasonable attempt at even discovering whether you need to pay any fees... no matter how reasonable.
Any kind of mandatory licensing regime would simply provide a windfall for lawyers, no protection for inventors, and turn the release of a $5.00 piece of shareware into a crippling nightmare.
Making a living selling software (more specifically the same software program to many thousands of users or more) isn't something you necessarily can do directly without intellectual property rights. However, this isn't how most programmers make their money. A quick glance at the job listings will tell you that most tools and applications are bespoke, designed by consultancies or by the users themselves, for themselves. Most companies listed aren't software companies. Java and .NET skills are in massive demand, yet what percentage of the day-to-day tools your mother runs on her desktop are written using either?
The issue is you're asking the wrong question: making a living selling software is only important if you believe you want a career in sales. But salespeople can find work in any environment. The more important issue is how can you make money being a programmer? And realistically, if copyright and patents were abolished overnight, 90% of programmers would still retain their jobs. Those working for Microsoft and Adobe might have problems. Those working for Sun, IBM, and Novell would probably continue business as usual. The vast majority, who work on software you've never heard of, employed by companies like Proctor and Gamble, BellSouth, Viacom, Accenture, etc, will continue to work on what they were working on the day before. Why stop?
Even those laid off will find employment. Demand will still exist for the types of generic application that were usually sold commercially. But the nature of their employ will change. Hardware manufacturers will try to get software out that makes their software sing, that makes their computers desirable. We might even see a return to the innovation of the mid-eighties as hardware manufacturers see being new and different as desirable, to distinguish their platform from the others.
I'm not going to say I want copyright abolished tomorrow, but I strongly believe programmers have the least to fear from such an eventuality, and a general loosening of copyright and patent laws with regards to software could have very positive effects.
You are not alone. This is not normal. None of this is normal.
I would have to disagree with your comments on this. You are completely forgetting the small independent software vendors (ISV). ... do you think that recipe for mt favourite spread "nutella" should be made public by the company that makes it? ... the whole software development market is becoming one GIANT WALLMART! There is thousands of developers working for free and a few people scooping the benefits.
I am somewhat passionate about this subject ... if you wish to discuss this more there is a great website www.antiopensource.com to discuss this further. Open source impact on software innovation in general.
My two cents...
I personally am one, but also use the tools built by small shareware shops. Sometimes these people work hard for years and truly INVENT something. If the work is not patentable big companies can scoop the idea and use their marketing engine to completely overrun the small guy.
That will completely stop the innovation process which is already in crisis. Why would you invent if you cannot protect your invention from big corporations?
Why is it that only software has to be "open", "free" and not not patentable
Software can and is an innovation process from start to finish. Many things are not patentable, but simply saying that one cannot patent software related innovation (or any innovation for that matter) is WRONG!
The only people who will benefit from this are big corporations. Small "Joes" will disappear from the face of the earth completely
Good! now i have a backup plan in case the courts come calling ;)
http://www.eff.org/cgi/mt/mt-search.cgi?IncludeBlo gs=11&search=patent/
* lon3st4r *
... is told very well in this recent publication by Oxford University Press.
You can't now. The big corporations can counter-attack with their patent aresenal and flatten you.
I pretend to know more than I really do by mooching off google and wikipedia.
Indeed I should have been more careful to draw the line from point A to B to C instead of just speaking on point C. What I said was part of a much larger point, then I cut out a lot of the stuff I felt was "long-winded" but apparently it was also the part that made it topical.
Draw your own lines from point A to point B if you want, I really don't feel like rewriting something that I found too drawn to post in the first place and I'm sure you're not dying to read it.
Yes, as a matter of fact, I do think that the recipe for Nutella should be made available to the general public. Then we could make our own improved version. Like a nut-free version for nut allergy sufferers.
I would guess that Nutella's main competitors probably are the supermarkets wanting to punt an "own brand" alternative {a.k.a. legal counterfeiting} which they will then peg a few pence cheaper than the price of "real" Nutella; and they aren't short of a bob or two with which to get the "real" thing analysed in a well-equipped lab.
The people who lose out in this are the ones who rush out and buy Nutella -- not some third-party alternative which they believe, rightly or wrongly, is inferior -- instead of eating something less expensive and more nutritious.
Je fume. Tu fumes. Nous fûmes!
"City hall" in German is "Rathaus" Kinda explains a few things......
Public domain simply lets the biggest bully on the block blow away the real inventors.
I will create a sig when innovation restarts in the U.S.
http://philsalin.com/patents.html Please let the EC be the only sane software-patent-less place to make money. When some slob shuts me down in the US, I can still use my genuine inventions in the EC. Keep the evil scum out !
Nut-free Nutella for nut allergy sufferers? I sure hope you are nut soffering from nut allergy, as in that case it would be a severe autoallergy.
How about a vegetarian T-bone steak? And a glass of dry water? Or perhaps a shot of non-alcoholic vodka?
-Lasse
It's very simple. I can make a living selling software. Copyright law gives me enough protection, I don't need to patent my inventions as well.
The number "7" is in the public domain. The number that represents the .exe file of Microsoft Word is not.
Patents cover ideas. Copyrights cover the expression of ideas. A specific expression of an idea can be represented as a number. Ideas themselves can't.
You can of course represent the patent text as a number, but that is again a particular expression of the idea, not the idea itself. The patent text is therefore covered by copyright, not by the patent.
In my prior posting I specifically mentioned the need for rational litigation and public disclosure of licensing terms. Put aside for a moment, if you will, the question of whether these patents should have been granted.
Currently, the most common method in a trial to determine obviousness is for each side to present an expert witness. The judge or jury then chooses to believe the testimony of the expert they prefer. However, there are other ways to establish obviousness. If, as you say, the technique in the claim was implemented unknowingly in "publicly available and public domain code" this would be a strong argument in favor of the claim being obvious. More rational litigation would not only permit such evidence, it would appear in pre-trial disclosure, most likely leading to a settlement or the case being dropped. All such evidence should become part of the patent file, so that other people could benefit from the knowledge.
Currently, virtually all patent litigation evidence is kept sealed by agreement between the parties, which in my view, negates much of the original purpose of patents.
My second point was to require public disclosure of licensing. It is often stated that patent licensing fees may run between 3% and 6% of net revenue. However, this is for patents that are the heart and soul of product. Suppose your product consists of 10,000 lines of code. 11 lines, to use your example, infringe on the Hayes patent. Your revenue from this product is perhaps $3 million per year. Simple arithmetic shows that the patent contributes 11/10,000. At 6%, pro-rated, your "fair" licensing fee would be $198 per year.
The music industry provide a means for anyone who wishes to use a copyrighted work to pay a simple fee by formula. High school drama departments, for example, frequently use this service.
The patent industry and/or the software industry could setup a similar system for licensing software patents. Self registration, when the fees are fair, would likely be far more profitable to the patent holders (not the attorneys) than current litigation system.
I believe that all patent licensing should be public domain information. In the current information age, the licensing information would often be more valuable than the original patent disclosure, and would be no more than a continuation of the original intent of the patent system, which was to encourage public disclosure, for the public good. (Kind of like wikipedia.)
I will create a sig when innovation restarts in the U.S.