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UK High Court Allows Software Patent Claims
An anonymous reader tips us to a note up on the IPKat blog, written by one of the four law-professor types behind that venture. The British High Court has ruled on appeal that the UK Patent Office must not reject software patent applications out of hand, as it has been doing for some time now. "In a surprising (to this Kat at least) turn of events, the Honourable Mr Justice Kitchin has ruled today that the current UK Patent Office practice of flatly rejecting patent claims to computer program products is wrong... Kitchin J found that the appeals should be allowed. Each application concerned a computer related invention where the examiner had allowed claims to, in effect, a method performed by running a suitably programmed computer and to a computer programmed to carry out the method... The cases were remitted to the [UK Intellectual Property Office] for further consideration in light of the judgment."
Welcome to the party, our British cousins.
Is it tea time yet?
---- Booth was a patriot ----
This is NOT good news for software innovation in the UK at all.
Anyone claiming that there hasn't been any innovation in software over the last 10 years because of the lack of ability to patent it in the UK is clearly barking mad.
Yes, as someone that has worked on generating IP before I strongly believe that people should be paid for their work if they don't wish to donate it for free, but clearly a lack of patents hasn't prevented this either.
All this will bring eventually is the stifling of the software industry, oh, and more patent trolling, joy.
there goes the U.K. software industry. It's unfortunate that the people we most trust to protect our industry and our livelihoods are the most clueless about the very technology we must have in order to do that. The United States is no better in that regard, that's for damn sure. Too bad ... it looks like we're just going to roll over and leave whatever innovation is left in the software field to the Chinese and the Indians.
Well, all I can say is I'm happy I don't live in the only completely backwards developed country in the world anymore! Welcome to the bottom rung of the ladder UK! I think there's room here next to us lowly US techies.
...who paid for this and how much did it cost?
...patent filing applications concerning computer related inventions where the examiner had allowed claims to, in effect, a method performed by running a suitably programmed computer and to a computer programmed to carry out the method?
Motivation is a requirement for a market based on capitalism to drive innovation.
It is possible to grant patents on software but the patent must be well defined and checked by someone who knows the industry and isn't just some office peon. We must all spend more resources for patent reform not by reforming the patent system but by simply pooling more resources into the system and giving it the resources it needs to truly make correct decisions on patents.
The amount of money given to the patent office as well as the time a patent is active should correlate to the amount of inventions (patents) there are per year. Since innovation has been accelerating the time a patent is active should go down while the patent office should get more money.
This will allow innovation to thrive. Eventually innovation will reach a critical mass where it doesn't even make sense to have patents but we're not there yet.
PS: My comment applies to all patent systems. Not just the UK. !:O
The High Court is not the highest court in the land; there's potential (at least, I don't see anything ruling it out) for the UK-IPO to appeal to the lawlords for a definitive ruling on what UK patent law actually is. And then if they decide that the law does not allow for software patents to be discarded without consideration - which would surely be something of a surprise to everyone, given that the stated position of just about every authority is that it does and they should - there is always the chance that Parliament will stomp out the loophole again (because ultimately, the judiciary in this country can't override Parliament; it can only clarify).
I was under the assumption that software patents in the EU were not valid. Thus making any pro software patent verdict by the court in the UK invalid?
...old people were best suited to make very important decisions. After all, they had the most learning, the most experience, and the most wisdom.
Now, however, technology moves much faster than the human mind. A person may easily see two or three technological revolutions in his lifetime, each one forcing the rejection of old value systems and the embracing of new perspectives.
Unfortunately, the older a human mind gets, the less able it is to reject old value systems and embrace new perspectives.
So now, the decisions of the old-and-powerful wind up causing great harm to the young-and-visionary.
The thing that REALLY gets me is when young people...people who *should* know better...buy into this we-need-control-to-have-innovation crap.
If I could put smart in the water, I would.
From what I understand after reading the article, he ruled that software patents are to be reviewed for "methods" of doing something. In other words, it's still impossible to patent the double click in the UK, and only patent things like "manufacture something using a computer as the control unit".
Still, I think the UK "wouldn't" be allowed to give out software patents if the European Parliament says not to do so.
And yes, I do believe this judge is horribly wrong, but it's not too bad anyway.
Patent 1: Software 2000 has developed a method of generating bit masks for use with laser printers which results in higher quality images. It is implemented by programming a conventional computer, printer or copier to process images in a particular way. Software 2000 exploits its invention by selling the program to its commerical partners who then incorporate it in their printers and printer drivers and distribute it to the end users in the form of printers, computer discs and web downloads. The end users are located worldwide.
Patent 2: Astron Clinica was founded to commercialise skin imaging techniques developed at the University of Birmingham which enable images of the skin to be processed to identify the distribution and concentration of underlying skin chromophores. The invention described in its application provides a system and process for generating realistic images representing the results of planned cosmetic or surgical interventions which change the actual or apparent distribution of these chromophores. The invention is implemented by programming a computer to process images in a particular way. It is commercialised here and abroad by selling a disc which causes a computer to be configured so as to undertake the required processing.
Patent 3: Inrotis is a spin-off company established by the University of Newcastle upon Tyne to commercialise drug discovery and network analysis techniques. Broadly speaking, the inventions the subject of its two applications in issue concern methods of identifying groups of target protein interactions. The commerical product which Inrotis sells is a computer disc which causes a computer to be configured so as to carry out the necessary processing.
Patent 4: SurfKitchen is a mobile services company and has made an invention which improves the ability of mobile telephones to access services on the internet. It is implemented by pre-storing a program on a mobile telephone memory or by downloading the program from the internet. In either case the program is usually made available by one of SurfKitchen's commerical partners to whom it makes the program available on a computer disc.
Patent 5: Cyan Technology is a semi-conductor company which designs and builds micro-controllers. It has invented a method of generating data for configuring micro-controllers which greatly simplifies chip design and programming. The commerical products that implement the invention are computer discs and Internet downloads worldwide.
Give me a break- break me off a piece of that Kit Kat bar.... (Hehehe.... captcha: phosgene.... LOL)
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
"This will spur innovation in unprecedented ways in the coming years in the UK!"
I would be able to say that if, with this change, the patent system would be improved to further function as intended in... Uhh, 1474. Only more efficiently.
The period of protection was back then 10 years to protect the profit from new innovations, so inventors didn't get ripped off immediately, in turn keeping them interested in innovating. A great idea! Really, I think patents are in general a great idea, no sarcasm involved. They were then released after 10 years, fairly early at the time of technological evolution back then, so that it also didn't halt competition and innovations that were based on it. You also needed to have the product out. Because otherwise, there's not much to protect, you know? People back then didn't think mere ideas should be patentable.
Now, two main things seem to have changed. First, patents are now in effect for 20 years. And you can patent stuff before products are out and in use. Actually, you can patent without even planning to innovate anything! This of course has very harmful effects for innovation, and forms the breeding ground for businesses exploiting this as their business model, suing others for infringing on their oh-so-valuable patents.
As for the extended lifetime, it would still work out fairly well if this interesting graph just wasn't in effect. (note: that graph is logarithmic; it's actually an exponential rate) Unfortunately for our patent situation, but fortunately for us living in this interesting day and age, history itself has proven it is. We don't even need to speculate, because it's historical evidence, not about anything that may happen in the future. The facts here are that we know which key events have happened in history (we know if something is a key event or not by looking at what the product of the paradigm shift was) and when they did, and that's pretty much all we need to see patent lifetime extensions are the least we have needed.
So, what I think must be done to restore patents to a working state again would be two main things:
1. Once again, like a long time ago, we should only be able to patent what's released, or possibly (in fear of day 1 patent hijacking after insider leaks) some duration less than e.g. a year in advance, but then the company will immediately have the patent expire if this goal is not fulfilled, along with having a hefty penalty associated with it, possibly a percentage of a company's revenue for some duration X (for an example, how about X being the time in advance the patent was granted?). So the more a company would "guess" and just throw things out without being sure of themselves, the greater risk of real losses they would run. They would now be forced to weigh the risk against the benefit. If they definitely have something worked on and are sure of themselves, sure, they could then submit the application, no special risks involved. Because they would be using the system as intented. I'm not sure if a patent should be allowed to be cancelled with no penalty, because that could be used to stall competition. Maybe that a project might not bear fruit and getting abandoned would have to be a risk a company submitting quite early patents would simply have to take.
2. Second, we need to adjust patent lifetimes to the accelerating rate of paradigm shifts in order to not risk slowing them down. This risk should logically increase the further into the future we get. The doubled patent lifetime since 1474 should probably instead have been halved by now. The adjustment was made in the opposite direction as demaned by society and rate of innovations. The lifetime may also need to be adapted to various business needs. For example, computer software is often considered old in 5 years. Within that timeframe, even Microsoft will have had time to develop Windows Vista, including the project reboot in between PDC 2003 and Beta 1, so that's not saying little.
Beware: In C++, your friends can see your privates!
Before too many hysterical reactions kick in, bear in mind the actual rules have not changed here, and software patents as such are still disallowed in Europe. If you follow the link in TFA you'll get the current definitions (emphasis added):
"(1) European patents shall be granted for any inventions which are susceptible of industrial applications, 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."
In that context, the test is then to decide whether claims such as the following are industrial applications which involve an inventive step, or purely programs for computers. I don't think they're all equal. The SurfKitchen sounds like a computer program to me, while I have some sympathy for the thought of Astron Clinica having invented a new overall way of carrying out surgery and wanting to patent the method, including the part that is carried out on a computer: it is not obvious, nor a business process, or something as basically stupid as the whole "One Click" thing. Also, note that these are mostly not software companies. You might still disagree with judge's conclusion and have further points to make, but please no more mindless nonsense about the imminent death of the UK software industry and a shift to the American system.
1. Software 2000: a method of generating bit masks for use with laser printers which results in higher quality images.
2. Astron Clinica: a system and process for generating realistic images representing the results of planned cosmetic or surgical interventions which change the actual or apparent distribution of underlying skin chomophores.
3. Inrotis: methods of identifying groups of target proteins for drug theray by processing proteome data defining proteins and protein interactions.
4. SurfKitchen: an invention to improve the ability of mobile telephones to access services on the Internet by pre-storing a program on a mobile telephone memory or by downloading the program from the Internet.
5. Cyan Technology: a method of generating data for configuring micro-prodcts which greatly simplifies chip design and programming.
Astron how you feel? Since it is Astron that launched this stupid case in the first place.
More like criminal.
Obviously we're going to have the SAME discussion we always do so rather than the usual I recommend everyone who wishes to learn read this book. Yes it covers all of IP not just patents or software patents in particular. You all could use the fresh perspective.
I completely agree! However, unfortunately, you're preaching to the choir. The question now is, what do we have to do to convince those that make the law that this is what needs to be done? I've been thinking lately - I wonder if someone could get them (corrupt congressmen) at their own game. For instance, run for office and have a reasonable chance at becoming a senator or representative, and then create a bill with some catchy acronym like "The 2008 DON'T EAT BABIES Act" that gives money to orphans, and just so happens to also change patent law. If anyone comes out against it, gather a list and send a letter to all the major news outlets saying "Senator So-And-So is against the DON'T EAT BABIES Act!" and invite them to ask him why he is against it. That'd get them to vote for it real quick, if they want to stay in office. But nah, I think that sort of behavior would require me to give up certain virtues, which I won't do. Still, nice to dream.
I think that the major problem with patents is not just that, in software in particular, rapidly changing ideas are patented as soon as they are thought up. At least to a degree, patents also defeat the purpose of capitalism as it was originally designed. Capitalism thrives on competition. If you remove the ability of more than one company to create a product with a certain feature, then you have a limited form of a monopoly. The best way to prevent other people from making more money than you by copying your product is to make your product better than the competing versions. (Or, unfortunately, to spend more money on advertising.)
On a somewhat related note, I find this graph rather interesting.
Tomato wedge sperm darts that are Republican.
It's not. Extreme arguing is the geek version of reality TV and about as worthless. Besides who is OSS going to sell it's philosophy to if we're all dead?
Hasn't anyone noticed how (us programmers) refer to programming as "writing" software not "inventing" software? Or how we "write" code not "invent" code? Software shouldn't be patented much as books aren't, software builds on each other much as books do.
There is no "disagree" moderation, and troll, flamebait and overrated are not valid substitutes
Why don't you give readers the full truth?
Not so "let's get the rabble up in arms" is it?
"As for the extended lifetime, it would still work out fairly well if this interesting graph just wasn't in effect. (note: that graph is logarithmic; it's actually an exponential rate) Unfortunately for our patent situation,"
Funny, I don't see the breakdown for "patents".
Comment removed based on user account deletion
Not just niggers, but paki's too!
And only if a complete build environment with nonobfuscated code in a vmware bubble is distributed along with the patent application. After the patent expires the source code enters the public domain. Otherwise, no patent protection and no, copyright should not apply to source code anymore than it does to any other mathematical proof.
Can I get a copyright on 2+2=4? No, that would be rejected out of hand, every mathmatical process is the same, just at difference scales, including source code.
I agree: there is a lot of hysteria here, and not a lot of cause for it. The more panicky of you can find a paper bag and breath into it, while I talk slowly and calmly about something familiar, like toast, maybe, until your heart rate comes down a bit.
To the outsider, the world of patents may seem utterly without reason. However, as patents are supposed to cover things that haven't existed until now, there are always problems as the patent laws meet something new. There was a famous fuss back in about 1857 (?) when someone patented putting a rubber at the end of a pencil - both rubber and pencil existed: was putting the two together obvious? If it wasn't obvious, why wasn't anyone doing it?
Right now, we have several such struggles gong on at once. The whole issue of computer program patentability is a bit clearer than the issue of business models or games: there is clear prior art. Any Turing complete system has been known to be capable of performing any calculation that can be performed. So you are going to have to patent a computer plus something. An Europe (and, patentwise, the UK is in Europe, here) the program is not patentable in itself, so we are gong to have to add something physical.
Okay - on to toast. The first bit always comes out too light. If you twiddle the knobs, the second bit comes out too dark. If you fill both slots, it may be different. Say - you could stick a computer in there. It would know whether you have put in one slice or two, and whether this is the first slice of the day. It could learn what corrections it needs to apply to these special states from whether you pop it up early, or push it down again. It could even estimate the albedo of the toast from the resistence, and hence the temperature of the filament. Nice toast for everyone, and a patent for me, yay!
Okay, now I want to protect my mighty toaster empire against the circling, predatory rivals, so I have to tighten up my patent. A toaster with a computer is patentable, just like a rubber on a pencil, but the toaster and the computer aren't. A toaster with a USB output so you can control it from a computer might be patentable, so you have to add that as a claim in your patent. A toaster with a general purpose computer that can also be used for checking your toast is OK too. An unprogrammed toaster computer that picks up the latest software from a website would be okay as well, so you stick in extra claims for these. A hear-resistant computer designed to interface with toasters might be patentable too, provided you can point to some innovation.
This is not a completely silly example. Xerox had patents covering the photocopier. Canon patented a photocopier with a computer between the scanner and the recorder at a time where real-time image processing on whole pages seemed absurd. This was worth a huge amount of money as they could make photocopiers, and laser printers.
You can perhaps see why we got here. To protect my idea, I have to consider all the possibilities where the computer is not in the toaster, the program isn't in the computer, the toaster fits into a slot in your computer, the program is in the package but not loaded in the toaster, the computer is next to a conventional toaster and turning its controls, and so on. The more toaster I cut away, the more it looks like a software patent. There is no risk for sticking in extra dependent claims, so in they all go, and it is up to a judge to determine the exact point where the toaster disappeared.
If you have a glib patent agent, they might persuade a judge that there is still some toaster left, when there really isn't. These things happen. Doesn't change the law, though.
A judge with probably a superficial understanding of software, gets to make a technical decision that contradicts the vast majority of software experts.
It's not a legal decision, its a technical judgment of what really constitutes writing software. Writing software should be treated the same way as writing novels. Certainly imagination is involved, but in the plot, and ideas, and not the process of writing. Think what would happen if the plots of novels could be patented: how soon it would cripple the publishing industry? Publishing houses would prevent other authors from copying their plots. Companies would form just to generate new plots in the hope of suing some successful author whose plot bears a faint resemblance to one of their own.
Actually this scenario bears an uncanny resemblance to the current US software industry, with software patent trolls beginning to grind the industry there to a halt.
So please Judges, don't stray outside your field of competence - just ask some programming experts what they think of software patents!
Now let's dismiss these patent descriptions...
In a free market, they price their software appropriately and it's not worth while any company reimplementing it. I could argue that this one fails all 4 of the art52-2 criteria just as easily as pro-patent side argue it's a "patentable invention".
Sounds to me like they could patent that without software claims. What's the problem, is it a patent application for an existing technique done in software?
Again the fact that they're doing it in software is irrelevant.
From that description... not patentable!
There is no invention. This is a sequence of processing instructions (information) to generate a specific kind of information. What's patentable here exactly? Is someone saying that anyone suitably skilled in this field couldn't knock up a perl script to do this? Not patentable!
I like Indian food...
But i like it made with bacon and ground beef instead of lamb.
* The FIRST US/UK TREATY: Provisional Articles QUOTE "Contract Between the King and the Thirteen United States of North America", END QUOTE signed at Versailles July 16, 1782 NOTE: ARTICLE I IS THE DEBT SCHEDULE FOR $18 MILLION FRENCH LIVRES REPAYMENT BY THE USA TO THE BRITISH CROWN. THAT WAS NEVER HONORED BY THE USA. http://www.yale.edu/lawweb/avalon/diplomacy/france/fr-1782.htm
A little off topic, maybe, but I would say that this graph may represent our nearsightedness more than an actual rate of change.
Thus, this ruling proves that judges should only rule on such matters if they are qualified in IT/engineering (and not Latin or history).
As it is, many UK judges are WELL past their time, which is why you get these idiotic judgements.
Take Nobody's Word For It.
The many ill-thought laws with significant bias for the benefit of industry and commerce is not a result of rigidity and conservatism, but the very contrary political forces which continually take more distance to the core of the Constitution.
Thomas Jefferson warned of this when he said "I hope we shall take warning from the example and crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and to bid defiance to the laws of their country."
FalconShould there be a Law?
it looks like we're just going to roll over and leave whatever innovation is left in the software field to the Chinese and the Indians.
And Brazil and other countries of South America.
FalconShould there be a Law?
I should note, though, that the USPTO generates a great deal of its own revenue in the form of fees related to the filing and prosecution of patents.
Precisely. And that's wrong.
Actually how it's done is what's wrong. What I'd suggest, and I got this partially from another /.er, is to have a short term for patents say 5 years. Then have a tyme table for the extension of patents. To keep a patent active for another year, to make it 6 years, the patent holder will pay X which could be a percentage of the revenue the patent generates. For each year this would increase until the patent holder puts it in the public domain. For instance say for year 1 X is 10%, year 2 it is 25%, and so on. This would allow businesses to recoup the costs of research yet speed up when a patent enters the public domain.
Having said that there are two things, 3 really, that shouldn't be patentable. One is algorithms, two business methods, and three software which basically are algorithms.
FalconShould there be a Law?
because ultimately, the judiciary in this country can't override Parliament; it can only clarify).
I wish Canada worked that way.
Though I don't like all the rulings the US Supreme Court hands down I'd rather have the 3 legs the USA Constitution set up than only have one or two legs. It sets up checks and balances that way.
FalconShould there be a Law?
First of all, the straight line from upper left to lower right is inherent in the graph. The way it's defined, no points can be above that line.
Second, information storage technologies almost inevitably have a limited lifetime, and the longer the lifetime the more expensive it is. To store information like "when was fire first used as a tool" required hundreds of thousands of individual controlled fires to be kindled for there to be enough remains to survive to mark the time (yes, the people creating the fires were not deliberately creating a record of the invention, but the result and the effort are the same as if they were). For some astronomical events, the cost of recording them easily exceeds the lifetime energy production of any conceivable human civilization. The survival of durable records, once the immediate loss of data that was not initially preserved, follows an exponential decay curve.
So that graph doesn't really say anything about the rate of important events, it says something about the viewpoint of the people making the lists. There may have been billions of events as important as the discovery of fire or slood that we have no idea about, because no record of them exists, and so they won't skew the curve.
Hell, we haven't even rediscovered slood yet ourselves.
The footer of every page of Astron's website states:
.NET Framework(TM) Windows XP(TM), DirectX(TM) and Windows Server(TM)."
"DERMETRICS is based on the Microsoft
Hmmm. I wonder if Microsoft has anything to do with this company? And I wonder if Microsoft are absolutely, totally, fanatically and maniacally desperate to get software patents accepted in Europe?
_
I am going to patent all methods and techniques for displaying "Hello World" :)
Given the demographic changes, where the majority of the western world will be old folks, we can only expect more old people in positions of power.
Does that mean the decisions will get more conservative? Hard to say. I'm not sure I buy into an ageist argument. It's not like they're going to suddenly lose what they've learned over the past 20 years, assuming they had tech exposure.
-Stu
Yes, and no. The different European legislative systems are on a whole similar in that they are not like the UK/US Common Law system but amongst each other they can differ a lot. There is a great leap between the French system to the Scandinavian-German tradition in interpreting, codifying and the value of past verdicts.
The EU can create new laws in many shapes and many ways. Laws can be proposed by the European Parliament or more importantly the Commission.
The way laws are created in European nations are not uniform and thus the European Union has chosen a middle path. European Union treaties and laws have preambles explaining the context and intention of the following text. As opposed to say the Scandinavian tradition of interpreting the wording of the text, and any unclear passages, within the context of the proposed text(s) of the law (drafts), Parliament's intentions with the law, the intention of the law itself (higher goals, values and morals), theory and textbooks..