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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.
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.
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.
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.
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!
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.