Sorry, but that's not what is written, even if that's what they want you to believe.
The two conditions are:
- a âtechnical contributionâ(TM)
- a computer-implemented invention
A âtechnical contributionâ(TM) is defined as anything that have a 'technical effect'. In practice, if you ask for a patent lawer or someone from a patent institute (like the INPI in France), a technical effect is something that happens as the goal of your program.
This means that an algorithm is not patentable, but an algorithm with a purpose _is_ patentable.
And the computer-implemented invention only means that it is not the software which is patented, but the software combinated with a computer. And the computer doesn't have to be special, it could be any computer. This means that running the software on your computer is infringing on the patent. So, Amazon one-click patent is valid. Also, distributing the software could be considered as giving tools ("fournir les moyens") to infringe the patent.
So no, unfortunately, they just wnat you to believe that the rules are better. But in fact, they are just carefully disguised, and are as bad as the US ones.
What makes you think there will be other such nations to begin with?
There is: European Countries. Because it is written in the law:
Article 5 Exceptions to the restricted acts
3. The person having a right to use a copy of a computer program shall be entitled,
without the authorization of the rightholder, to observe, study or test the functioning of the
program in order to determine the ideas and principles which underlie any element of the
program if he does so while performing any of the acts of loading, displaying, running,
transmitting or storing the program which he is entitled to do.
Article 6 Decompilation
1. The authorization of the rightholder shall not be required where reproduction of the
code and translation of its form within the meaning of Article 4 (a) and (b) are
indispensable to obtain the information necessary to achieve the interoperability of an
independently created computer program with other programs, provided that the following
conditions are met:[...]
Toute stipulation contraire aux dispositions prévues aux II, III et IV du présent article est nulle et non avenue.
Meaning, in plain english: "Whatever say the contrary is considered as never written".
That means that the considered lines forbidding the decompilation have no legal power in France: it is legally as if they are not written in the EULA.
And there are jurisprudences here and here confirming the right to decompile something.
My question is : what is your feeling, from the inside, about software patent ?
Here is the feeling from the outside.
Software patents are a complex subject in Europe.
The law itself is clear (Art 52):
The following in particular shall not be regarded as inventions within the meaning of paragraph 1: [...]
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for
computers;
This decision to ban computer program from patenting was the result of a long discussion in
1973, were a lobby of industrial lawers were trying to make "computer programs" patentable.
Fortunately, they didn't succeed at the time.
But the law makers didn't want to rule out everything that use an algorithm. Just the thing that were only algorithms. So, they added (Art 52):
(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
In plain english: what is not patentable is only
computer programs as such.
The normal understanding of this is that what is only a computer program is not patentable. But if something is already patentable, and then use as a part of it an algorithm, then the whole is patentable. But still not the bare nude algorithm. This understanding is confirmed by the 1973 metting notes and by the scandinavian translation of the "as such" clause.
But the industrial lobby used this "as such" clause to brings back software patent by the backdoor. First by saying that the "as such" clause is too complicated to really understand what it means, and then by providing their view of it: a computer program that have a "further technical effect"
is not a program as such. For example, in the EPO examinator's guideline, it is written:
While "programs for computers" are included among the items listed in Art. 52(2), if the claimed
subject-matter has a technical character, it is not excluded from patentability by the provisions of
Art. 52(2) and (3).
This interpretation of "as such" is written nowhere in the law. A woman from the INPI even explained me once that as long as an algorithm does have a functionnality, then it is patentable. For example, "making a dictionnary of the most frequent lines in a file and replacing thoses lines by their dictionnary index" could not be patented, but add "in order to compress the file", and then it could be patented. The example is from her.
But the guideline go further:
In the practice of examining computer-implemented inventions, however, it may be more appropriate for the examiner to proceed directly to the questions of novelty and inventive
step, without considering beforehand the question of technical character. In assessing whether
there is an inventive step, the examiner must establish an objective technical problem which has
been overcome (see IV, 9.5). The solution of that problem constitutes the invention's technical
contribution to the art. The presence of such a technical contribution establishes that the claimed subject-matter has a technical character and therefore is indeed an invention within the meaning of Art. 52(1).
So, with this guideline, an examinator should not unrule software patent, but more, he should not even search for a "further technical effect".
But the EPO have no juridictional power. That's why, when there is patent litigation, it goes in front of a national court. But EPO could not impose its views on national court. So, in every european software patent case, the court has found the software patent illegal.
So, in order to have the Europe comply to its views, the industrial lobby, and especially our friends of the BSA, has lobbyed the European Commission to propose a new law to make software patent lawfull. My prefered line from the FAQ is about the answers they have got from a consultation he subject, and the respect they have for those answers (my emphasis):
Many of the responses supporting a more restrictive approach than at present, with fewer patents being granted, were transmitted
through an open forum set up by the "Eurolinux Alliance", a group of companies and other entities supporting the development of open
source software such as Linux.
Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper.
.
Fortunately, our gouvernment is still opposed to the idea. But how long could it stand against Europe or industrial lobbies ?
So, from outside, the feeling is that the EPO is defying the law, on the pressure of the industrial lobby. And in order to align the law to their views, they even lobby the European Commission.
And you ? What is your feeling about this ? Especially from the inside of the EPO. You are somehow in the center of the whole thing. I would really like to have an opinion "from the inside".
> "if you lock 10 guys in a room w/out ever having seen such a system and tell them to make one, they can use that and NOT be in violation of the patent"
Do you have a law reference supporting this ? Because I really don't think that it's true. It would be very easy then to infrige on a patent, just by saying "Oh, I didn't know there were a patent about it." It would be especially easy in Europe, were only the patent application is online. You have to pay to get the granted text (which could be significantly different, due to the patent officier comments).
> "Hence, if any programmer or team of programmers can reproduce this system without having seen it, you cant patent it."
Again, do you have a law reference supporting this ? My understanding of the law what that if it was easy to reproduce without having seen it, then the patent office won't grant it. But here, the USPO
has already granted it...
"We were keeping our eye on 1984. When the year came and the prophecy didn't, thoughtful Americans sang softly in praise of themselves. The
roots of liberal democracy had held. Wherever else the terror had happened, we, at least, had not been visited by Orwellian nightmares.
But we had forgotten that alongside Orwell's dark vision, there was another - slightly older, slightly less well known, equally chilling: Aldous
Huxley's Brave New World. Contrary to common belief even among the educated, Huxley and Orwell did not prophesy the same thing. Orwell
warns that we will be overcome by an externally imposed oppression. But in Huxley's vision, no Big Brother is required to deprive people of their
autonomy, maturity and history. As he saw it, people will come to love their oppression, to adore the technologies that undo their capacities to
think.
What Orwell feared were those who would ban books. What Huxley feared was that there would be no reason to ban a book, for there would
be no one who wanted to read one. Orwell feared those who would deprive us of information. Huxley feared those who would give us so much
that we would be reduced to passivity and egoism. Orwell feared that the truth would be concealed from us. Huxley feared the truth would be
drowned in a sea of irrelevance. Orwell feared we would become a captive culture. Huxley feared we would become a trivial culture,
preoccupied with some equivalent of the feelies, the orgy porgy, and the centrifugal bumblepuppy. As Huxley remarked in Brave New World
Revisited, the civil libertarians and rationalists who are ever on the alert to oppose tyranny "failed to take into account man's almost infinite
appetite for distractions". In 1984, Huxley added, people are controlled by inflicting pain. In Brave New World, they are controlled by inflicting
pleasure. In short, Orwell feared that what we hate will ruin us. Huxley feared that what we love will ruin us."
The book, which is really a must-read, is about the strong possibility that Huxley, not Orwell, was right.
Sotfware patent are not legal (yet ?) in Europe. Yes, EPO can give you a patent for a "computer-implemented" invention, proven that there is a "further technical effect" (whatever this means, if it is really much simpler than "as such". See the FFII web site for discussion about it). But for now, every times a software patent has been brought in front of a (national) court, it has been judged as illegal (decisions are here). So, yes, EPO grants software patent, but no, they are not legal in front of a national court.
So, we, european developer, could develop open-source project without caring about software patent. At least until we put the executable on the web. You can be judged as infringing a software patent if you distribute an executable. And severals judgment have set that "putting on the web" is like "distributing for the world". Finally, the Sklyarov stuff have shown that if you are found guilty of something in the us that is still absolutely legal in your country, it's not a good idea to go to the US. So, for now, the solution is to put a kind of message on the web page, like "sorry, if you are in the US, you don't have the right to download the software".
Fine. But in fact, in front of a court, this could be judged as not enought. A court could ask you to put a real filtering on your web page (see the Yahoo stuff). But if the filtering itself is patented in US ? Do we have to put a pre-filtering for US citizen ? Or does this means that wherever you are, if you put something on your web page, then you are bound by the US patent laws, even if you have different laws in your country ?
At least the Yahoo case required only the filtering for French citizen...
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
It seems like they could not sue somebody for _copyright_ on liking their news pages, could they ?
To emphasis this, take a look at european law about copyright and patent.
First, software patents are STILL unlawfull, even if given by the European Patent Office, and so are VERY LIKELY to be broken in front of a national court, as it has already be done.
Second, it seems that the patents given by the EPO are not as broad as the US patents, so they might not be used against european developers.
Finally, the Article 6 of the copyright law in Europe, about decompilation, specifically say that any user of a software has the right to decompile it "to achieve the interoperability of an independently created computer program with other programs", and that any part in a license say the contrary is considered as null.
The fact that you have to pay for private copy could be an advantage. For example, in France, there are taxes on every blank tapes or CDs, be it audio or video tape, or be it any CD-R or CD-RW.
Ok, this sucks. But the advantage is that it is written in the law (sorry, it's a French law, so it HAS to be in French) that in return for the taxes, people HAS LEGAL RIGHTS for what is called "fair use" in US, meaning :
copies for their own use;
familial usage;
short citations.
So, somehow, we pay for those rights. But this means that RIAA or SACEM (french) could'nt have the money WITHOUT letting us those rights.
So, I think that it's not so bad...
They have already been a consultation on this. Here is the answer of the commission about this consultation :
"Many of the responses supporting a more restrictive approach than at present [...]. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper."
So, even if 90% of the comment are AGAINST software patent, it doesn't seems to really trouble the commission.
So much for the democracy.
Why would it be different here ?
Algorithm patented ? Not in Europe...
on
More on MPEG4
·
· Score: 1
So, they have patented algorithms used in the MPEG4 standard, and want that anyone implementing their algorithms pay ? Fine, but they can't do it in Europe, where software (and algorithms) patents are NOT allowed (yet).
So, the solution is to have a European open-source implementation of the codec. It will be free to use by European and other softpatent-free country.
Or another way to do it is to hit where it hurts : on the money.
Why not creating a repository of open-source implementation of every software patents, and put this repository in a anti-software patent country (Europe, but not for long I'm afraid, or Canada, which have a really strong feeling against software patents, or even Russia, why not ?).
That would mean that every foreign industry, in a anti-softpatent country, will be able to create software using thoses open-source implementations, but NOT american industry !
A real disavantage for american company !
I'm sure that, then, it's them that will ask for NO software patent:-)
Slashdot Mirror
The two conditions are :
- a âtechnical contributionâ(TM)
- a computer-implemented invention
A âtechnical contributionâ(TM) is defined as anything that have a 'technical effect'. In practice, if you ask for a patent lawer or someone from a patent institute (like the INPI in France), a technical effect is something that happens as the goal of your program. This means that an algorithm is not patentable, but an algorithm with a purpose _is_ patentable.
And the computer-implemented invention only means that it is not the software which is patented, but the software combinated with a computer. And the computer doesn't have to be special, it could be any computer. This means that running the software on your computer is infringing on the patent. So, Amazon one-click patent is valid. Also, distributing the software could be considered as giving tools ("fournir les moyens") to infringe the patent.
So no, unfortunately, they just wnat you to believe that the rules are better. But in fact, they are just carefully disguised, and are as bad as the US ones.
And there are jurisprudences here and here confirming the right to decompile something.
Moreover, there is free and open-source implementations of those two visualizations: Treemap Java Library and Hypertree Java Library.
Here is the feeling from the outside.
Software patents are a complex subject in Europe. The law itself is clear (Art 52):
This decision to ban computer program from patenting was the result of a long discussion in 1973, were a lobby of industrial lawers were trying to make "computer programs" patentable. Fortunately, they didn't succeed at the time.But the law makers didn't want to rule out everything that use an algorithm. Just the thing that were only algorithms. So, they added (Art 52):
In plain english: what is not patentable is only computer programs as such. The normal understanding of this is that what is only a computer program is not patentable. But if something is already patentable, and then use as a part of it an algorithm, then the whole is patentable. But still not the bare nude algorithm.This understanding is confirmed by the 1973 metting notes and by the scandinavian translation of the "as such" clause.
But the industrial lobby used this "as such" clause to brings back software patent by the backdoor. First by saying that the "as such" clause is too complicated to really understand what it means, and then by providing their view of it: a computer program that have a "further technical effect" is not a program as such. For example, in the EPO examinator's guideline, it is written:
This interpretation of "as such" is written nowhere in the law. A woman from the INPI even explained me once that as long as an algorithm does have a functionnality, then it is patentable. For example, "making a dictionnary of the most frequent lines in a file and replacing thoses lines by their dictionnary index" could not be patented, but add "in order to compress the file", and then it could be patented. The example is from her.But the guideline go further:
So, with this guideline, an examinator should not unrule software patent, but more, he should not even search for a "further technical effect".But the EPO have no juridictional power. That's why, when there is patent litigation, it goes in front of a national court. But EPO could not impose its views on national court. So, in every european software patent case, the court has found the software patent illegal.
So, in order to have the Europe comply to its views, the industrial lobby, and especially our friends of the BSA, has lobbyed the European Commission to propose a new law to make software patent lawfull. My prefered line from the FAQ is about the answers they have got from a consultation he subject, and the respect they have for those answers (my emphasis):
.Fortunately, our gouvernment is still opposed to the idea. But how long could it stand against Europe or industrial lobbies ?
So, from outside, the feeling is that the EPO is defying the law, on the pressure of the industrial lobby. And in order to align the law to their views, they even lobby the European Commission.
And you ? What is your feeling about this ? Especially from the inside of the EPO. You are somehow in the center of the whole thing. I would really like to have an opinion "from the inside".
Do you have a law reference supporting this ?
Because I really don't think that it's true. It would be very easy then to infrige on a patent, just by saying "Oh, I didn't know there were a patent about it." It would be especially easy in Europe, were only the patent application is online. You have to pay to get the granted text (which could be significantly different, due to the patent officier comments).
> "Hence, if any programmer or team of programmers can reproduce this system without having seen it, you cant patent it."
Again, do you have a law reference supporting this ? My understanding of the law what that if it was easy to reproduce without having seen it, then the patent office won't grant it. But here, the USPO has already granted it...
The patent is valide in US, Japan, Germany, France, Great Britain and Italy, as explained here.
:
Patent numbers
US 4698672
EP 0266049
JP 63148789
Sotfware patent are not legal (yet ?) in Europe. Yes, EPO can give you a patent for a "computer-implemented" invention, proven that there is a "further technical effect" (whatever this means, if it is really much simpler than "as such". See the FFII web site for discussion about it). But for now, every times a software patent has been brought in front of a (national) court, it has been judged as illegal (decisions are here). So, yes, EPO grants software patent, but no, they are not legal in front of a national court.
So, we, european developer, could develop open-source project without caring about software patent. At least until we put the executable on the web. You can be judged as infringing a software patent if you distribute an executable. And severals judgment have set that "putting on the web" is like "distributing for the world". Finally, the Sklyarov stuff have shown that if you are found guilty of something in the us that is still absolutely legal in your country, it's not a good idea to go to the US. So, for now, the solution is to put a kind of message on the web page, like "sorry, if you are in the US, you don't have the right to download the software".
Fine. But in fact, in front of a court, this could be judged as not enought. A court could ask you to put a real filtering on your web page (see the Yahoo stuff). But if the filtering itself is patented in US ? Do we have to put a pre-filtering for US citizen ? Or does this means that wherever you are, if you put something on your web page, then you are bound by the US patent laws, even if you have different laws in your country ? At least the Yahoo case required only the filtering for French citizen...
From the Berne Convention for the Protection of Literary and Artistic Works, the international convention defining international copyright, Article 2, defining what is copyrightable :
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
It seems like they could not sue somebody for _copyright_ on liking their news pages, could they ?
To emphasis this, take a look at european law about copyright and patent.
First, software patents are STILL unlawfull, even if given by the European Patent Office, and so are VERY LIKELY to be broken in front of a national court, as it has already be done.
Second, it seems that the patents given by the EPO are not as broad as the US patents, so they might not be used against european developers.
Finally, the Article 6 of the copyright law in Europe, about decompilation, specifically say that any user of a software has the right to decompile it "to achieve the interoperability of an independently created computer program with other programs", and that any part in a license say the contrary is considered as null.
Ok, this sucks. But the advantage is that it is written in the law (sorry, it's a French law, so it HAS to be in French) that in return for the taxes, people HAS LEGAL RIGHTS for what is called "fair use" in US, meaning :
So, somehow, we pay for those rights. But this means that RIAA or SACEM (french) could'nt have the money WITHOUT letting us those rights. So, I think that it's not so bad...
"Many of the responses supporting a more restrictive approach than at present [...]. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper."
So, even if 90% of the comment are AGAINST software patent, it doesn't seems to really trouble the commission.
So much for the democracy.
Why would it be different here ?
So, they have patented algorithms used in the MPEG4 standard, and want that anyone implementing their algorithms pay ? Fine, but they can't do it in Europe, where software (and algorithms) patents are NOT allowed (yet).
So, the solution is to have a European open-source implementation of the codec. It will be free to use by European and other softpatent-free country.
Or another way to do it is to hit where it hurts : on the money.
:-)
Why not creating a repository of open-source implementation of every software patents, and put this repository in a anti-software patent country (Europe, but not for long I'm afraid, or Canada, which have a really strong feeling against software patents, or even Russia, why not ?).
That would mean that every foreign industry, in a anti-softpatent country, will be able to create software using thoses open-source implementations, but NOT american industry !
A real disavantage for american company !
I'm sure that, then, it's them that will ask for NO software patent