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"
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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.
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.
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?
For anyone who didn't cringe at that post (and I'm talking about the wording of the post, not what MS did or didn't do), please read COPYRIGHT vs. TRADEMARK vs. PATENT before taking part in this discussion.
Any idea, typed up, can be reproduced in binary. I don't see what that has to do with anything.
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.
is like trying to divine a law of how women work.
You think of a man, and then you take away reason and accountability.
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??
Waffles are from Brussels or Liege, so Brussels Waffles, please.
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?
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.
Well, let's look at it in computer terms.
1946-1966: development of the mainframe computer, based on the pioneering work that took place during WW2. Invention of procedural and functional programming.
1966-1986: development of the modern desktop computer with GUI and applications. Creation of the internet. Invention of object-oriented programming.
1986-2006: development of Microsoft Windows and videogames.
Yup, clearly progression has been accelerating. I mean, the invention of the entire concept of computing simply can't compare to the invention of Final Fantasy XVIII.
What about between 1890 and 1910?
What about it? One of the most innovative periods of human history, during which the introduction of the automobile totally changed the entire face of the developed world. Oh, and there was this other invention then called the "airplane". You may have heard of it, I believe it's still used in some parts of the world.
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
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!
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.
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.
Though many on slashdot may claim it is blasphemy to say this, I do not think that patents are nessessarily a bad thing.
You are confused. The vast majority on Slashdot accept patents are a good and usefull thing. You have to dig long and hard to find two or three people around here actually arguing against patents.
The whole "no patents" thing is a strawman.
No, the main argument going on here is whether patentability should be EXPANDED to cover mathematical calculations - whether patentability should be EXPANDED to cover sequences of mental steps.
In the 1980's a US court reversed US patent law and abandoned critical doctrines of patent law and violated all global norms of patent law. Prior to that the US, and all other nations, all said that you could not "invent" math and that you could not get a patent for "inventing" a sequence of logical mental steps. The US and the rest of the world rejected ny and all attempts to patent software. Most of the world still stands by traditional patent law and still rejects any claims to "inventing" software. The nations that have reversed their patent law on this point have often done so under the arm-twisting of US Free Trade Treaties.
The current issue is whether the EU will adopt this US-style patent law creating logic patents, or whether they will stick with traditioal patent law and the terms of the existing European Patent Convention. The European Patent Convention says:
Patentable inventions
(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
There is no meaningful "anti-patent" side in this fight. One side is pro-patent and for the patentability of mathematical methods, and the other side is pro-patent and against the patentability of mathematical methods.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Saying that rejecting software patents somehow equals taking away property rights is rediculous
Software patents are known as intelectual property. So they ARE property. Clearly, you don't believe that people should have the right to patent software. My point is that why distinguish between software and other things that you deem patentable? Software is a mental procedure as you have pointed out. So, what is hardware? In many cases hardware is specified in VHDL code or something similar. Since many hardware innovations involve using high level languages to describe tangible things, you must consider hardware patents out as well. Lets take another example. How about building a bridge? This is a tangable thing. So, it's patentable right? Well, what if the patent is a procedure for how to build a bridge cheaper? This is really a series of mental steps to build the bridge correct? According to your argument, "software" is out because it's a series of mental steps. Shouldn't bridge building be out then too?
What it comes down to is that patents protect, in a large part, procedures and processes. Some of those processes involve a real thing (like a telephone, etc), but a lot of them don't. If you want to take away people's rights to intellectual property, then why not just come out and say it, but the distinction between software specifications and specifications of tangible items is fuzzy at best.
most peope here think that it is obvious that software is not an invention.
Definition of invention (dictionary.com): A new device, method, or process developed from study and experimentation: the phonograph, an invention attributed to Thomas Edison.
does a Java method fit this definition? It's a method. It's developed from study or experimentation.
you're saying that in 1980 the US was taking away people's property rights when it consistantly rejected all attempts to patent software. You're saying that the entire world was taking away people's property rights at the time. You're saying that most of the world is still taking away people's property rights.
Well, if what you say is true, then yes, that's what I'm saying. Before 1980, hardly anyone had a computer, so I can see why the patent offices world wide might have gotten confused. As far as the world taking away property rights I think Europe is currently debating this as we speak and I don't think the US is considering this. I don't know about other parts of the world.
A one hundred digit number may certainly have never been seen before (novel). A one hundred digit number may certainly be non-obvious. A one hundred digit number my certainly be usefull. However a number is not an invention. Math is not an invention. A calculation is not an invention. Logic itself is not an invention. A sequence of mental steps is not an invention.
This is a straw man argument. A one hundred digit number is not patentable because it's not a useful process and therefore does not fit the definition of a utility patent. There are also many things that have been granted a patent like the hyperlink that are obvious and commonly used. These are flaws in the system, but flaws don't mean that you should disband the system altogether. On the contrary, we need to update the system to work in today's world.
No Sigs!