" IMHO, this is the effect the general political disinterest the population has here in the EU."
Try to see it from their view:
They think that TRIPs requires that software be patentable, that software is *currently* patentable due to the requirement in TRIPS and that the Parliament don't understand the current situation. They also think they are protecting European software companies from Asian competition.
So the politicians in the Commission think they are doing the best for Europe. They think they're the good guys because the lobbyists tell them they are!
To me & you its different.
Software isn't patentable because its mathematics. New ideas in programming are treated as discoveries not inventions currently and don't come under TRIPs at all. This is clearly written into patent law and the EU Patent office is ignoring the law when it patents software:
http://www.european-patent-office.org/legal/epc/ e/ ar52.html Part 2.c
"The following in particular shall not be regarded as inventions...discoveries, scientific theories and mathematical methods...and programs for computers"
From our world view software patents would be a disaster, no way to determine prior art, no way to defend against obvious patents because of no prior art, mathematics locked up for 20 years, blocked from most markets due to patents....
I disagree, all they've done is change their virus definition (a series of tokens in some format) to pseudo code (a different series of tokens in some other format with program like qualities).
I presume the other virus programs already use IF and LOOP tokens to handle polymorphism of virus's because polymorphism is already detected by other companies products.
What interests me, is that if this was a patent for a Spinning Jenny we would *know* if there is prior art from looking at the previous machines and I wouldn't have to 'presume' anything.
But because this is software we have to guess whether other companies use programming constructs like IF and LOOP in their virus definition files that would qualify as the use of P-Code in virus detectors.
I also wonder if they need the patent to protect that idea, if they don't document the virus file format who would know? Seems to me if they didn't disclose it and it was a real invention then they would have plenty of opportunity to make money from it.
Its like patents are being used as a fight mechanism..... and Symantic has hit out with a left patent hook, meanwhile McAfee strikes with a sneaky undercut design patent..... rather than a mechanism to reward invention.
" What good is open source software if you need to purchase a patent licence to use it?"
But the totally visible prior art would nullify pretty much all of the patents people are currently applying for.....
You want to patent X?, we could wheel in a truck load of X prior art. At the moment we can't do that because to show prior art requires we have access to the internal code of close source software...
How about we insist on forced open source as a price for patents?
I mean:
* You can't determine prior art if all the software is closed source. * You can't defend against patents if your prevented from showing the prior art.
Therefore in exchange for patents, all software must be open source. Not just the patented bits (because unpatented bits may be prior art for future patents) - all of it.
That would fit with the Vacuum cleaner/Steam engine model, since as soon a Dyson puts out a new Vacuum cleaner its obvious from looking at it how it works. So it would put software in the same position.
When we focus on the damage software patents can do, haven't we forgotten about the other nasty in that wording: patenting of business processes?
I mean fluff like Amazons one click ordering and shopping lists and all the other stuff of a non-technical nature that can be patented under that wording, just as long as its implemented in software...
This was another nasty hole the Commissions/BSA wording had in it that the Parliament tackled.
After all a patent were never intended to protect 5 minute non technical ideas!
It might be easier to explain *that* problem to the Commission even if you can't get them to understand the problem with Software patents.
"The second negative from the first sentence is missing, but you managed three in the second."
Actually an & is missing from the first sentence, done for effect. The 'didn't' is intentional misuse chosen for emphasis.
But if you didn't understand it, I'll try again: It is wrong to assume just because a Commissioner sits in the same seat, that he holds the same views as the previous Commissioner.
"the things we can either not claim ownership to or are otherwise unenforceable, due to common nature...."
Or the 3rd option, claim ownership but protect the idea in some other way, for example trade secrets as its done now.
"further advance his knowledge...... and deception...."
I'm not sure what exactly was your beef with grand parent AC's comment anyway. It seems quite plain, he can't take the risk on making closed source software in the USA because flimsy patent suits would bankrupt him (as opposed to only losing his investment - the normal commercial risk). At least that's what I got from his comments, or did you take something different?
"The Hanford site in Washington, which had a rather lengthy history of very serious "accidents", releases 25,000 gallons of water contaminated with plutonium in 1997. Fined? $140,625."
But is that a comment against the FCC or a comment against the Nuclear regulatory authority? That fine seems to be 100 times too low to me.
If it was $14 million fine, that would be 28 times more serious and much more in proportion to a major industry putting people at risk.
" Which is precisely why patents were created in the first place,"
Can I point out that *lost* secrets do not appear to be a problem with software. There does not appear to be any piece of software before that cannot be done now. i.e. no lost magic.
Therefore forced disclosure to prevent loss of ideas isn't necessary for software.
Further patents don't fix this. A piece of software may have 30 parts to it, 10 patentable and 20 that would represent prior art to other people future patents.
Even if the company discloses the 10 (and properly, not like the vague patents of the USA), it still means the 20 are not disclosed.
Whereas in the vacuum cleaner case, all 30 parts are noticable, even if Dyson didn't think those parts were patentable.
I just checked for countries subscribing to the Patent Cooperation Treaty.
http://www.angenehm.com/pat_faqs3.html
The priority date (the date from which your patent is taken to have been submitted) is taken as the first submission to any patent office in any country in which you applied.
So it looks like Belgian's guys problem above would apply. His USA counterpart would come in and apply for a patent quoting a prior USA patent priority date.
He's then forced to try to show prior art in a world where prior software art isn't disclosed. So there's probably plenty of prior art, but can he get the companies to release their code to prove it?!
Does the priority date apply then?, will all these USA software companies apply for software patents quoting their USA application date as their priority date? Ouch.
I'm in a slightly different position than yourself.
Suppose I patent my stuff, it is worthless unless I also spend a lot of money defending those patents. I can't afford to both invest in my company AND play the patent/lawyer game. All it would do is divert money from 'making things' into money spent 'stopping other people making things'.
At the moment I can keep my code secret and that works well. But if I do that in a patent world, then someone else will patent in my area and I will be screwed.
" Sure, then you just don't buy their software and hence don't sign the paper."
But I want to read these new documents from the EU on their new laws!
"A way around this is of course to have a friend buy and sign the contract, and then give the software to you as a gift." So MS put a clause in the contract....
I think its worth seeing the bigger picture. If you supply a document and it comes in a format that has conditions attached to it (e.g. price, EULA DRM keys whatever). Then that document has those precondition attached to it.
Here I suggested MS could use the EULA as a law modifier, but even without the EULA you have the *price* as a precondition.
Perhaps Google should now come out against patents in Europe.
Afterall their patents on search technology are worthless, anyone could use Pagerank and Google could not show they had used it -> failed attempt to protect invention.
Their newer search technology (they changed the algo last year), hasn't been disclosed in patent form and so the SEOs & competitors don't know how it works and MS couldn't copy it -> successful defence of invention.
They don't hold enough patents to join the "big company patent exchange club".
" EULA and click-wrapping are basically not enforcable in the EU"
This is an End User Agreement between yourself and Microsoft America. You agree that the state of Washington has jurisdiction over this agreement....
Don't dismiss EULAs so lightly, the same forces that push EULA in the USA (and have 2 court cases so far in their favour!) are pushing them in Europe too.
Closed standards are exclusory, open standards aren't.
An open standard can be freely used by the closed standard company (e.g. Microsoft can use HTML), whereas the closed standard can't be used by the rest of the world. (e.g. the Microsoft patented XML formats need a license to use).
For example, Microsofts XML document format is patented. To use it you need a product that has licensed from them or Microsoft's own product. So if the EU publishes in that format, then they have set a precondition that the reader has to accept Microsofts terms for use of that document format.
If you choose not to accept those Microsoft terms then you are excluded from reading the EU document.
Their constitution forbids them from being exclusory so by definition they must opt for the open standard.
What exactly is the problem with MS using open standards and competing with the rest of the companies? Why hide behind the BSA?
And I use a stapler from 20 years ago, but I'm pretty sure they made the money from their design of that stapler a long time ago.
Remember its not how long stuff lasts, its how long it takes to recoup the development costs and really not even that, its how long it takes to recoup the development costs of the *novel* *Invention* part of the thing your making.
So in the case of one click online ordering, that took perhaps a hour to scribble on the back of a napkin over lunch, how long does it take to cover the cost of that hour 'inventing'?
Slashdot Mirror
" IMHO, this is the effect the general political disinterest the population has here in the EU."
/ e/ ar52.html
Try to see it from their view:
They think that TRIPs requires that software be patentable, that software is *currently* patentable due to the requirement in TRIPS and that the Parliament don't understand the current situation. They also think they are protecting European software companies from Asian competition.
So the politicians in the Commission think they are doing the best for Europe. They think they're the good guys because the lobbyists tell them they are!
To me & you its different.
Software isn't patentable because its mathematics. New ideas in programming are treated as discoveries not inventions currently and don't come under TRIPs at all.
This is clearly written into patent law and the EU Patent office is ignoring the law when it patents software:
http://www.european-patent-office.org/legal/epc
Part 2.c
"The following in particular shall not be regarded as inventions...discoveries, scientific theories and mathematical methods...and programs for computers"
From our world view software patents would be a disaster, no way to determine prior art, no way to defend against obvious patents because of no prior art, mathematics locked up for 20 years, blocked from most markets due to patents....
I disagree, all they've done is change their virus definition (a series of tokens in some format) to pseudo code (a different series of tokens in some other format with program like qualities).
I presume the other virus programs already use IF and LOOP tokens to handle polymorphism of virus's because polymorphism is already detected by other companies products.
What interests me, is that if this was a patent for a Spinning Jenny we would *know* if there is prior art from looking at the previous machines and I wouldn't have to 'presume' anything.
But because this is software we have to guess whether other companies use programming constructs like IF and LOOP in their virus definition files that would qualify as the use of P-Code in virus detectors.
I also wonder if they need the patent to protect that idea, if they don't document the virus file format who would know?
Seems to me if they didn't disclose it and it was a real invention then they would have plenty of opportunity to make money from it.
Its like patents are being used as a fight mechanism..... and Symantic has hit out with a left patent hook, meanwhile McAfee strikes with a sneaky undercut design patent.....
rather than a mechanism to reward invention.
" What good is open source software if you need to purchase a patent licence to use it?"
But the totally visible prior art would nullify pretty much all of the patents people are currently applying for.....
You want to patent X?, we could wheel in a truck load of X prior art. At the moment we can't do that because to show prior art requires we have access to the internal code of close source software...
How about we insist on forced open source as a price for patents?
I mean:
* You can't determine prior art if all the software is closed source.
* You can't defend against patents if your prevented from showing the prior art.
Therefore in exchange for patents, all software must be open source. Not just the patented bits (because unpatented bits may be prior art for future patents) - all of it.
That would fit with the Vacuum cleaner/Steam engine model, since as soon a Dyson puts out a new Vacuum cleaner its obvious from looking at it how it works. So it would put software in the same position.
When we focus on the damage software patents can do, haven't we forgotten about the other nasty in that wording: patenting of business processes?
I mean fluff like Amazons one click ordering and shopping lists and all the other stuff of a non-technical nature that can be patented under that wording, just as long as its implemented in software...
This was another nasty hole the Commissions/BSA wording had in it that the Parliament tackled.
After all a patent were never intended to protect 5 minute non technical ideas!
It might be easier to explain *that* problem to the Commission even if you can't get them to understand the problem with Software patents.
It doesn't follow.
Another acceptable outcome would be if the Commission simply adopted the amendements of the Parliament under the co-decision process.
We just need to keep that A list item from being passed without a vote.
"The second negative from the first sentence is missing, but you managed three in the second."
Actually an & is missing from the first sentence, done for effect. The 'didn't' is intentional misuse chosen for emphasis.
But if you didn't understand it, I'll try again:
It is wrong to assume just because a Commissioner sits in the same seat, that he holds the same views as the previous Commissioner.
You don't know the intention of the *new* *different* Commission. Don't assume they don't see the problem the way the last lot didn't.
"the things we can either not claim ownership to or are otherwise unenforceable, due to common nature...."
Or the 3rd option, claim ownership but protect the idea in some other way, for example trade secrets as its done now.
"further advance his knowledge...... and deception...."
I'm not sure what exactly was your beef with grand parent AC's comment anyway. It seems quite plain, he can't take the risk on making closed source software in the USA because flimsy patent suits would bankrupt him (as opposed to only losing his investment - the normal commercial risk).
At least that's what I got from his comments, or did you take something different?
"To prove that software is not patentable means that it must be made easy enough to create that its common for anyone to do so"
What like 1 click ordering? So easy to create that its common for anyone to do so, and that will make it not patentable?
"The Hanford site in Washington, which had a rather lengthy history of very serious "accidents", releases 25,000 gallons of water contaminated with plutonium in 1997. Fined? $140,625."
But is that a comment against the FCC or a comment against the Nuclear regulatory authority?
That fine seems to be 100 times too low to me.
If it was $14 million fine, that would be 28 times more serious and much more in proportion to a major industry putting people at risk.
" Which is precisely why patents were created in the first place,"
Can I point out that *lost* secrets do not appear to be a problem with software. There does not appear to be any piece of software before that cannot be done now. i.e. no lost magic.
Therefore forced disclosure to prevent loss of ideas isn't necessary for software.
Further patents don't fix this. A piece of software may have 30 parts to it, 10 patentable and 20 that would represent prior art to other people future patents.
Even if the company discloses the 10 (and properly, not like the vague patents of the USA), it still means the 20 are not disclosed.
Whereas in the vacuum cleaner case, all 30 parts are noticable, even if Dyson didn't think those parts were patentable.
I just checked for countries subscribing to the Patent Cooperation Treaty.
http://www.angenehm.com/pat_faqs3.html
The priority date (the date from which your patent is taken to have been submitted) is taken as the first submission to any patent office in any country in which you applied.
So it looks like Belgian's guys problem above would apply. His USA counterpart would come in and apply for a patent quoting a prior USA patent priority date.
He's then forced to try to show prior art in a world where prior software art isn't disclosed. So there's probably plenty of prior art, but can he get the companies to release their code to prove it?!
Or you could just not disclose your code!
I mean Dyson put out a Vacuum cleaner and its obvious how it works just by examining it.
Microsoft put out a modified Kerberos and nobody can figure out how it works until they gave out the documentation...
Does the priority date apply then?, will all these USA software companies apply for software patents quoting their USA application date as their priority date? Ouch.
I'm in a slightly different position than yourself.
Suppose I patent my stuff, it is worthless unless I also spend a lot of money defending those patents. I can't afford to both invest in my company AND play the patent/lawyer game. All it would do is divert money from 'making things' into money spent 'stopping other people making things'.
At the moment I can keep my code secret and that works well. But if I do that in a patent world, then someone else will patent in my area and I will be screwed.
" Sure, then you just don't buy their software and hence don't sign the paper."
But I want to read these new documents from the EU on their new laws!
"A way around this is of course to have a friend buy and sign the contract, and then give the software to you as a gift."
So MS put a clause in the contract....
I think its worth seeing the bigger picture. If you supply a document and it comes in a format that has conditions attached to it (e.g. price, EULA DRM keys whatever). Then that document has those precondition attached to it.
Here I suggested MS could use the EULA as a law modifier, but even without the EULA you have the *price* as a precondition.
"After the allegation comes discovery."
Where's your case? You have nothing but a spurious allegation!
"Whatever is being kept secret, by either side, is subject to duplication without license. "
Spy 1: "I have a secret"
Spy 2: "Quick patent it to keep it secret"
You second conclusion lacks merit. Other search engines haven't copied Google new special sauce because they don't know what it is!
"Whatever they write in their EULA, it is not enforcable unless you have signed it with ink on paper."
Please reread the last step again.
Perhaps Google should now come out against patents in Europe.
Afterall their patents on search technology are worthless, anyone could use Pagerank and Google could not show they had used it -> failed attempt to protect invention.
Their newer search technology (they changed the algo last year), hasn't been disclosed in patent form and so the SEOs & competitors don't know how it works and MS couldn't copy it -> successful defence of invention.
They don't hold enough patents to join the "big company patent exchange club".
Imagine the game of cat and mouse.
EU ponders and conjutates for 3-4 years: "Software companies are liable for bad software."
Microsoft lawyers the next day: "Change the EULA to say we are only liable for $10 worth"
EU ponders and conjutates for 3-4 years: "Software companies cannot set limits on the liability"
Microsoft lawyers change the EULA the next day:
"By not returing this product in the first 30 days you are agreeing the product is defect free".
EU ponders and conjutates for 3-4 years...."EULAs are contracts *after* a sale and hence unenforceable".
Microsoft lawyers the next day, "sellers of Microsoft software must get the buyer to sign the EULA before taking the payment".
" EULA and click-wrapping are basically not enforcable in the EU"
This is an End User Agreement between yourself and Microsoft America. You agree that the state of Washington has jurisdiction over this agreement....
Don't dismiss EULAs so lightly, the same forces that push EULA in the USA (and have 2 court cases so far in their favour!) are pushing them in Europe too.
" Not if the law specifies that you cannot sign away this right contractually. "
Look again, the example I gave doesn't contradict the law.
Suppose:
EU decides that European citizens can sue Software companies for bad software and publishes that law in some proprietary Microsoft format.
Microsoft EULA for the program to read that document says users accept they can only sue MS for a maximum of $10 damages.
By publishing in that proprietary format they have let a company tack on a rider onto that law.
Closed standards are exclusory, open standards aren't.
An open standard can be freely used by the closed standard company (e.g. Microsoft can use HTML), whereas the closed standard can't be used by the rest of the world. (e.g. the Microsoft patented XML formats need a license to use).
For example, Microsofts XML document format is patented. To use it you need a product that has licensed from them or Microsoft's own product.
So if the EU publishes in that format, then they have set a precondition that the reader has to accept Microsofts terms for use of that document format.
If you choose not to accept those Microsoft terms then you are excluded from reading the EU document.
Their constitution forbids them from being exclusory so by definition they must opt for the open standard.
What exactly is the problem with MS using open standards and competing with the rest of the companies? Why hide behind the BSA?
And I use a stapler from 20 years ago, but I'm pretty sure they made the money from their design of that stapler a long time ago.
Remember its not how long stuff lasts, its how long it takes to recoup the development costs and really not even that, its how long it takes to recoup the development costs of the *novel* *Invention* part of the thing your making.
So in the case of one click online ordering, that took perhaps a hour to scribble on the back of a napkin over lunch, how long does it take to cover the cost of that hour 'inventing'?