That is not true, otherwise they wouldn't so actively lobby to legalise software patents in Europe as well. They most definitely intend to make "active use" of their patents.
The Commission and Council claim that software patents (which they call "patents on computer-implemented inventions") were always possible/legal, and that they are simply clarifying this "fact". It's purely a word game...
In case of a lot of software patents, that's not necessarily true. Many of them are based on *what* your program does, and not so much at *how* you do it (by using phrasings "using a hardware button", so in theory they say how, but in practice you're not an inch closer to an implementation). Or on how you display something (e.g. Adobe's patent on tabbed palettes). Or on things in embedded in standards (jpeg, mp3, gif). Or on business methods.
All those things can just as easily be found in a closed source program. And if you are really burnt on bringing something down, you can also find it in a closed source program (remember Stac vs Microsoft).
There is no "the EU". The Council and the Commission are (or were at least, since we just got a new Commission and we don't know how they think about it yet) proponents of the effect you describe, but they explain it completely differently.
According to them, those patents should already be enforceable today, but the law is not interpreted the same everywhere. So they want to harmonise it and make sure that software patents are enforceable everywhere in Europe, except pretty much only in the UK as it is until now (they never mention this last part obviously).
Of course, our (FFII's) position is that until now, those patents are generally not enforceable, in the UK they interpret the European Patent Convention in a completely ass-backwards way (just like the Commission/Council) and when you force all of Europe to accept the UK's case law then this is not just some formal "harmonisation".
That's irrelevant, unfortunately. The software patents are already here (30,000+ of them), they're just not yet enforceable. If the software patent directive comes through like the Commission/Council wants it, it will suddenly become quite easy to enforce them in courts.
For the record, I do not think that software patents are intrinsically evil. I believe in my heart-of-hearts that algorithms are just as much an invention as a better mousetrap, and I disagree with the article author's assertion that the copyright protection granted to an implementation is sufficient protection for this inventive process.
Most studies on that subject (slow server) disagree with you. Hell, even the head of intellectual property at Cisco disagrees that software patents are a good thing. In his words (during the FTC hearings of 2002):
My observation is that patents have not been a positive force in stimulating innovation at Cisco. Competition has been the motivator; bringing new products to market in a timely manner is critical. Everything we have done to create new products would have been done even if we could not obtain patents on the innovations and inventions contained in these products. I know this because no one has ever asked me "can we patent this?" before deciding whether to invest time and resources into product development.
Plus, you forget that one of the Principles of Free Software, transparency, is fundament in the patent process. The wisdom of the patent system is, In exchange for exclusive right-to-use on your invention, for a limited time, you must fully disclose that same invention.
And one of the nice things about free software is that it results in this full disclosure (more so than the patent system, since that one never includes source code) without all the costs and downsides of the patent system. Otoh, software patents are exactly the reverse: they grant a monopoly on something which they were going to fully disclose (in the sense of the patent system at least) anyway, because using it is the same as publishing it (e.g. a business method or an interface paradigm).
Bit patterns and ideas of a truly unusual level of originality, unobviousness (even in the face of a transformative technology like the Internet that makes all kinds of things suddenly obvious) and technical complexity generally should be able to be matters of economic commerce, otherwise those people creating ideas and bit patterns will ultimately fail to be able to afford real estate.
I agree with the bit patterns (after all, that's what copyright protects, among other things), but not necessarily with the ideas. Why ideas should be free (from an economical point of view), can be seen in this presentation. It doesn't mean that you shouldn't be able to sell ideas (so they can be objects of commerce in that sense), but it does mean one should not be able to own an idea.
It's almost purely strategic use. Software patents are indeed generally not used to protect investments in the patented algorithms, but to keep the competition out of the marketplace. Conversely, you can also use them to avoid having a competitor pulling that trick on you, by cross-licensing your patents against his'. That's only a viable option for large companies, however.
You might also be interested in the testimony of Robert Barr (word doc) (VP at Cisco and their head of intellectual Property) at the FTC hearings in 2002:
My observation is that patents have not been a positive force in stimulating innovation at Cisco. Competition has been the motivator; bringing new products to market in a timely manner is critical. Everything we have done to create new products would have been done even if we could not obtain patents on the innovations and inventions contained in these products. I know this because no one has ever asked me "can we patent this?" before deciding whether to invest time and resources into product development.
[...]
The time and money we spend on patent filings, prosecution, and maintenance, litigation and licensing could be better spent on product development and research leading to more innovation. But we are filing hundreds of patents each year for reasons unrelated to promoting or protecting innovation.
[...]
Moreover, stockpiling patents does not really solve the problem of unintentional patent infringement through independent development. If we are accused of infringement by a patent holder who does not make and sell products, or who sells in much smaller volume than we do, our patents do not have sufficient value to the other party to deter a lawsuit or reduce the amount of money demanded by the other company. Thus, rather than rewarding innovation, the patent system penalizes innovative companies who successfully bring new products to the marketplace and it subsidizes or rewards those who fail to do so.
Why do they think that FOSS is more suseptable than proprietary?
On the one hand, there is an inherent incompatibility between software patents and FOSS: it is impossible for a FOSS developer to get a license for a software patent based on a per copy license fee, because he simply cannot know how many copies are out there. Therefore, most RAND licenses are simply unavailable to FOSS.
Otoh, it's certainly true that closed source is just as vulnerable in most cases, as long as it's produces by an independent developer or small company. Nevertheless, unlike what many people seem to think here, Munich is currently not thinking about stopping the migration. They are simply launching a campaign to encourage the German government to oppose software patents. This is purely a marketing/political ploy, nothing more, nothing less.
Reading that, the idea comes to mind that perhaps the only appropriate form for a software patent would be source code. No source, no patent. Might that help, do you think? It would start giving society something again...
Including source code would shift the balance indeed again a little more towards society (but both patent offices and patent lawyers are vehemently opposed to this, not sure why). However, it wouldn't automatically solve all the other problems with software patents.
You might want to check out this page about a third paradigm between copyright and patents. Instead of first granting a patent and then revoke it when it's bad, those proposed systems won't even grant the monopoly if it's invalid (and inherently check validity more stringent than in case of patents), and the applicant pays for bad applications.
but why are patently obvious procedures patentable?
Simply because "obvious" means something entirely different in case of patent law than in real life. The most important for the patent offices is rules which can be applied systematically and similarly in different cases. They simply do not have time to discuss for hours with an expert on whether or not something might be obvious or not.
Non-obviousness is more or less a synonym for "novelty" in patent speak. An often heard argument in that context is "if it weren't obvious, then why didn't someone else already think of it". Now how do you know whether someone else already thought of it? Again, you need some "objective" criterion, so they use the patent database, as well as written publications. They don't use published source code however, since it's not possible to datamine that efficiently (just think of how you could look through all programs out there whether one of those already uses a particular shader technique).
So first of all, if something is not a litteral combination of prior art, it's considered novel and secondly a lot of prior art is simply not looked at (e.g. because it was so simple it may have been used a lot by programmers, but no-one ever in his right mind even thought about submitting an article about it to a conference or journal).
Note that the problem of trivial patents is not even reserved to the field of software, there are tons of trivial patents in other fields as well. The patent system was simply never designed to stop trivial patents! However, it was taken for granted that the benefits of the "good" patents outweighed the bad effects of the "bad" patents.
In case of software patents, this is even less likely, however. Some nice reading on the theoretical background on why software patents are so trivial (from a European point of view), can be found here.
The bottom line is simply that the patent system is simply not fit for the monopolisation of advances in abstract logic/maths, also not when you perform them on a computer. It has little to do with whether or not the USPTO has a quality problem, although that obviously makes the situation even worse.
Too bad for Apple if someone steals their (good) idea for spring loaded folders or the ipod's click wheel.
You cannot steal ideas (good nor bad ones). When someone monopolises a mere idea (e.g. through the use of a software patent), he's stealing from all other companies and society to boot. And FWIW, a patent on the the iPod's click wheel would not (necessarily) be a software patent. A patent on spring loaded folders definitely would be.
And why is the monopolisation of ideas not allowed? Because patent law is not there to allow companies to maximise their ROI, but it's a deal between society and innovators. Society gets a description of how to build something, and in return the innovator gets a temporarily monopoly.
One problem with software patents is however that more than half the time the given description could be gotten just as easily from looking at the innovation itself (e.g. spring loaded folders and all business method patents), so the company gets a monopoly for free and society gets screwed over.
Some more info on the idea-innovation dichotomy can be found in this presentation.
They are stealing FairPlay. That is, FairPlay is the intellectual property they are stealing.
No, they are not stealing FairPlay. FairPlay consists of two things: the underlying principle and the way it's expressed in source/object code. The latter is owned by Apple. The former isn't, unless they have one or other software patent I don't know about. They may also own the trademark FairPlay, but Real's using the name Harmony...
All they'd have to do is sell them as unprotected MP3 or AAC files. No more interoperability concern.
Yeah, no concerns at all anymore since won't have any music left they'll be allowed to sell from the big five.
What Real is trying to do instead is co-opt Apple's "unique" DRM system so they can have their cake and eat it, too.
But what is inherently wrong with that? You can't own a DRM or encryption system or principle (unless indirectly through software patents). Are the OpenOffice guys then also doing something wrong by reading and writing the.doc format? Are the Linux/PPC guys doing something wrong by porting Linux to the Mac (thus possibly depriving Apple of some future Mac OS sales)?
Like it or not, Apple is perfectly entitled to have an issue with that, and we'll see if some judge agrees or not eventually.
Of course Apple has an issue with that, since it threatens to take away revenue from them. But apart from indirect things like the DMCA, I can't see why what Real did is illegal or even morally wrong.
Could it be that they know they can't win enough of a market share from the iPod with the current quality of their product, so to capitalize on a tenuous situation they reverse engineer FairPlay to tap into a market developed by Apple (i.e. iPod owners).
When did Real make a competitor for the iPod?
There is nothing admirable about this type of competitiveness, and it has nothing to do with the kind of technological progress we all long for.
Competitiveness has several potential positive effects. One is more progress, another is more choice, yet another one is lower prices.
Real didn't enhance the core quality of any of their products.
Sure they did, they made sure that songs bought in their store can be played on the most popular portable music player out there. That's a quality that may get them more customers.
You may be anti-DRM and all for fair-use, but lets call a spade a spade, people. If everyone "competed" in this way, the quality of everything we use would degrade into worthlessness.
That's plain BS. After a while, things which were once exclusive pretty much always become a commodity. The first mover had a market advantage for a while and then loses it. The result is that prices get driven down and consumers get more choice, and something new will have to be created to get that enviable first mover advantage again (unless your product is so much better than the competition's this is not even necessary, which some would certainly argue in case of Apple vs Real).
I don't think artificially prolonged scarcity (as in this case, by using technological means to exclude competitors) is ever good for the market/society as a whole.
What stealing?? You can only steal something that is someone else's property. What did Real steal, even if you include intellectual property as things that can be stolen? Did they infringe a patent? Did they infringe copyright? They they abused a trademark from Apple?
No, they simply reverse engineered FairPlay to create a product that can interoperate with the iPod. Is that also stealing nowadays? It's like saying that those companies making clone cartridges for inkjets are stealing from the printer manufacturers... Nobody has a right to a particular amount of profit, and depriving someone of profit by offering an alternative is *not* stealing, it's called competition in a free market.
They even not only do this because the information there is not really useful, but because if you perform a search and later are sued for patent infringement (even if you did not find that patent), you can be convicted to pay tripple damages because of so-called "willful infringement".
It encourages an innovation race, which should mean more innovation more quickly.
It doesn't work that way in software (or even computer hardware for a large part). Take for example this testimony (Word document) of Robert Barr (Vice President, Worldwide Patent Counsel, Cisco Systems) at the FTC hearings on the effects of patents on competition in 2002:
My observation is that patents have not been a positive force in stimulating innovation at Cisco. Competition has been the motivator; bringing new products to market in a timely manner is critical. Everything we have done to create new products would have been done even if we could not obtain patents on the innovations and inventions contained in these products. I know this because no one has ever asked me 'can we patent this?' before deciding whether to invest time and resources into product development.
I noticed the same thing. Freecache mentions on its homepage that that they can exclude certain sites and files, but I'm not sure why they'd exclude this one. Maybe free.fr as a whole is excluded for some reason?
Slashdot Mirror
That is not true, otherwise they wouldn't so actively lobby to legalise software patents in Europe as well. They most definitely intend to make "active use" of their patents.
The Commission and Council claim that software patents (which they call "patents on computer-implemented inventions") were always possible/legal, and that they are simply clarifying this "fact". It's purely a word game...
All those things can just as easily be found in a closed source program. And if you are really burnt on bringing something down, you can also find it in a closed source program (remember Stac vs Microsoft).
According to them, those patents should already be enforceable today, but the law is not interpreted the same everywhere. So they want to harmonise it and make sure that software patents are enforceable everywhere in Europe, except pretty much only in the UK as it is until now (they never mention this last part obviously).
Of course, our (FFII's) position is that until now, those patents are generally not enforceable, in the UK they interpret the European Patent Convention in a completely ass-backwards way (just like the Commission/Council) and when you force all of Europe to accept the UK's case law then this is not just some formal "harmonisation".
That's irrelevant, unfortunately. The software patents are already here (30,000+ of them), they're just not yet enforceable. If the software patent directive comes through like the Commission/Council wants it, it will suddenly become quite easy to enforce them in courts.
They've learned from their mistakes however.
You might also be interested in the testimony of Robert Barr (word doc) (VP at Cisco and their head of intellectual Property) at the FTC hearings in 2002:
Otoh, it's certainly true that closed source is just as vulnerable in most cases, as long as it's produces by an independent developer or small company. Nevertheless, unlike what many people seem to think here, Munich is currently not thinking about stopping the migration. They are simply launching a campaign to encourage the German government to oppose software patents. This is purely a marketing/political ploy, nothing more, nothing less.
No, there are hardware problems with the server (failing disk). You can still access the pages by replacing swpat in swpat.ffii.org with www2 or www3.
You might want to check out this page about a third paradigm between copyright and patents. Instead of first granting a patent and then revoke it when it's bad, those proposed systems won't even grant the monopoly if it's invalid (and inherently check validity more stringent than in case of patents), and the applicant pays for bad applications.
Non-obviousness is more or less a synonym for "novelty" in patent speak. An often heard argument in that context is "if it weren't obvious, then why didn't someone else already think of it". Now how do you know whether someone else already thought of it? Again, you need some "objective" criterion, so they use the patent database, as well as written publications. They don't use published source code however, since it's not possible to datamine that efficiently (just think of how you could look through all programs out there whether one of those already uses a particular shader technique).
So first of all, if something is not a litteral combination of prior art, it's considered novel and secondly a lot of prior art is simply not looked at (e.g. because it was so simple it may have been used a lot by programmers, but no-one ever in his right mind even thought about submitting an article about it to a conference or journal).
Note that the problem of trivial patents is not even reserved to the field of software, there are tons of trivial patents in other fields as well. The patent system was simply never designed to stop trivial patents! However, it was taken for granted that the benefits of the "good" patents outweighed the bad effects of the "bad" patents.
In case of software patents, this is even less likely, however. Some nice reading on the theoretical background on why software patents are so trivial (from a European point of view), can be found here.
The bottom line is simply that the patent system is simply not fit for the monopolisation of advances in abstract logic/maths, also not when you perform them on a computer. It has little to do with whether or not the USPTO has a quality problem, although that obviously makes the situation even worse.
And why is the monopolisation of ideas not allowed? Because patent law is not there to allow companies to maximise their ROI, but it's a deal between society and innovators. Society gets a description of how to build something, and in return the innovator gets a temporarily monopoly.
One problem with software patents is however that more than half the time the given description could be gotten just as easily from looking at the innovation itself (e.g. spring loaded folders and all business method patents), so the company gets a monopoly for free and society gets screwed over.
Some more info on the idea-innovation dichotomy can be found in this presentation.
I don't think artificially prolonged scarcity (as in this case, by using technological means to exclude competitors) is ever good for the market/society as a whole.
It's indeed possible Real violated the idiotic DMCA by creating their product. Even that doesn't make them thieves, however.
What stealing?? You can only steal something that is someone else's property. What did Real steal, even if you include intellectual property as things that can be stolen? Did they infringe a patent? Did they infringe copyright? They they abused a trademark from Apple?
No, they simply reverse engineered FairPlay to create a product that can interoperate with the iPod. Is that also stealing nowadays? It's like saying that those companies making clone cartridges for inkjets are stealing from the printer manufacturers... Nobody has a right to a particular amount of profit, and depriving someone of profit by offering an alternative is *not* stealing, it's called competition in a free market.
They even not only do this because the information there is not really useful, but because if you perform a search and later are sued for patent infringement (even if you did not find that patent), you can be convicted to pay tripple damages because of so-called "willful infringement".
I noticed the same thing. Freecache mentions on its homepage that that they can exclude certain sites and files, but I'm not sure why they'd exclude this one. Maybe free.fr as a whole is excluded for some reason?
Microsoft was late to hop on the software patent bandwagon, but this is changing now.
Do you hear about IBM threatening small companies all the time using (software) patents? No. Does that mean they don't do that? Hell, no!