I'm one of the lawyers for FTD.
The case we started is purely civil law: we ask the court to confirm that downloading for personal use is legal, and that FTD is doing nothing wrong by letting people identify materials available on Usenet that others may want to download.
The criminal aspect relates to a statement by BREIN that FTD is engaging in "criminal activities" by offering their platform. We consider this a form of defamation. But acting against defamation is also a civil action.
When you accuse someone of violating a law, you have to show where and how he did that. You usually do this by copy&pasting the text of the statute and explaining how each element applies to what your opponent did.
For example, for the cause of action "copyright infringement" you need to prove three elements: (1) your copyright ownership to the work, (2) defendant's access to the work, and (3) similarity with your original.
What the court here says is that you have to do more than say "I own the copyright in the work. Defendant had access to it, and what he has published is very similar to my work." That's a formulaic recitation of the elements of a cause of action.
Arnoud
The issue is that the license and the license alone is what permits the redistribution of the copyrighted materials. If you breach the license/contract/whatever, then without it, you have copyright infringement.
Ehm, no. If you breach the license/contract, you are in breach of contract and you need to fix that. That doesn't automatically terminate the contract (unless the contract says it does).
(Bad) analogy: we agree that I'll buy your car and I'll pay you $2,000 in consideration. I drive off, but do not pay you. Now you can sue me for nonpayment, but the car's still mine. It's not suddenly a theft because I didn't pay. You only have a contract claim (lack of payment) against me. That's the legal theory.
In this situation, the licensor grants permission to copy, modify and distribute, and the licensee accepts certain obligations in return. So, following the same theory: if the licensee fails to do his part, the permission is not withdrawn but the licensor must sue to make the licensee live up to his part.
Most countries have provisions in their laws that essentially state "if one party fails to perform his obligations under a contract, the other party can delay his performance until the first party comes into compliance again." This is to address exactly this situation. Without such provisions, your phone company could indeed stop giving service yet demand payment. I am not sure if a provision like that would apply to a license agreement, since the licensor is not performing at the time the licensee went into noncompliance.
I read that as "prohibits the distributor from charging *those who create derivative works* for creating derivative works". That makes sense given the "no additional restrictions" language of the GPL.
Even if the judge meant "no one may sell his own GPL-derivative work" it's not something to base an appeal on. And not just because this *is* the appeal. That part of the reasoning is not crucial to the judge's finding. Had he omitted that sentence, the rest of the verdict would be just as sensible.
Arnoud
This is actually how trademark law works in most countries in the world. The only difference is that renewal tends to be automatic, assuming you pay the renewal fee. So a company could end up paying renewal fees for twenty or thirty years for a trademark that should have been refused at the second renewal, for example.
And once a word is generic, no amount of letters is going to make it a distinct mark again. The problem is of course in the period just before that. The company can then try to turn the tide by writing letters like the one in the original article, although this is often not a success.
You can contribute:
Make a list of real patents, taken from the EPO patent register, but reduce and simplify them so that they consist of:...
So then I'd have a list of bad patents that should never have been issued. I can make such a list for any field of technology. What would this prove? That bad patents get issued? Sure, we know that. That it's more common in software-related fields to have bad patents? I can't prove that without doing the same for other fields and coming up with some common metric. And coming up with such a metric, and doing the evaluation in all those fields would mean a Ph.D's worth of work.
2. Is the contribution a technical one? Why (not) ?
I fundamentally disagree with the assumption that a technical contribution is necessary for something to qualify as an invention. The EPC is quite clear that something must qualify as an invention and as novel and as having an inventive step and as having industrial application. Therefore, the qualification for "invention" must be separate from novelty and inventive step. And you cannot identify the contribution without doing at least a novelty test, because you don't know what the contribution is if you don't check what the novel aspects are.
So, properly, the evaluation whether something has a technical contribution (which I do agree is absolutely necessary for patentability) cannot be done until after the evaluation of novelty. And that's why the Pension Benefits case rightfully put it with inventive step.
Nevertheless, we can then argue that such things are not inventive and so should not have been patented. But how would this convince the EPC-countries that are not caselaw-based, like Germany, France or the Netherlands? All of these currently allow patents on software-related inventions, the 1976 Dispositionsprogram or the Dutch Switching network) notwithstanding. See e.g. the 1993 "Barcode" (Streepjescode) verdict of the Dutch Patent Office.
I am sure you have the skill and knowledge to find some interesting IP-tech patents that will pinpoint the weaknesses of the directive. You can also look in the horror gallery. You could actually make the Comission resolve the EPO "physical data" inconsistency by doing this.
You still haven't explained to me what this inconsistency is. The EPO tries to resolve the "what is technical" issue with caselaw, and I identified a common theme in their caselaw: If you work with physical data, you're more likely to have a technical invention. That doesn't mean you can simply say "Oh, this data could be real world data, so it's an invention".
I'm not sure that is the problem. Maybe it's the medium. I can only ask you to again read Dispositionsprogramm and "Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention". Read it slowly and think of how to boil a frog. I think the water passed the critical deadly temperature with T 1173/97. The Commission is now about to legalize overlapping legal systems and that will kill BladeEnc and hurt SMEs all over Europe.
Wouldn't you say that the fact that the EPO threw out a pure business method (the pension benefit system) is a signal that they're coming round from the path taken in Sohei? In PBS, the fact that it was software wasn't enough to make it an inventive step.
Nevertheless, I've read the verdict and the Slippery Slope article. The article is written very much from a German point of view (understandably), but it provides no justifications for its premises. Very roughly, it says that the German system has a very good distinction between mind and matter, and that distinction is now getting very blurred, which is bad. Therefore, we must do something. This doesn't answer the question why this is bad.
Further, I do not see why the fact that there's overlap in the legal systems is a problem.
"It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software" Debugged: "It is simply not fair that an idea could be copied or imitated merely because it could be realized in software"
No, that's not the same as what I said. An innovation is not necessarily a novel idea. If we come up with a technique to make a TV work at 100Hz, then that's not an idea, but a practical realization of an idea ("let's make a more stable picture by scanning at 100 Hz").
It then should not make any difference whatsover whether the technique is realized by a set of chips, by some chips and some software, or by just a bunch of programs. That's an implementation detail.
Copyright protects from both copying an imitation, so there is no need to worry. Perhaps even competition law could be applicable?
Copyright does not help me against someone taking the technical principles, or even the functional realization of my device. Most technical things are unprotected by copyright, precisely because they are technical things that have to be done like that, and not original expressions. So you're free under copyright law to copy my device, and changing the frills and bells to make it look different. And if it looks different, you're outside the scope of my copyright.
Competition law does not help, as we put products on the market ourselves. That means everyone is free to buy one and study it. Competition law thinks this is perfectly acceptable. If there is no legal means to prevent people from ripping off our innovations, then we will get ripped off and eventually go out of business.
We could sell the devices with restrictive license conditions (like the DMCA) that forbid reverse engineering, and then go after people with competition law and contract law. But you really don't want that.
I can understand that you are worried about your company IP. But I think you agree that the law has to be written in the interest of the society as a whole. And perhaps patents on logical functionality is bad even for you?
I agree, the law has to benefit society as a whole. But if you agree that new, technical developments are to be protected by patents, and you know that a lot of new developments is done with (embedded) software, then would you agree that patents should protect those new developments?
But ordinary computer programs that process data, which happen to represent business data, can get patented. Where is the technical effect or 'further technical effect' in this?
Actually, if the data is business data (like monetary values), then that produces no (further) technical effect. You'd then have to look at, for example, whether the amount of data that is transferred is reduced, or something like that. But then it's no longer a business invention, but a data compression technique camouflaged as a business technique.
The EPO examples of business methods you give on your website are examples for solving abstract non-technical problems using a computer.
I've tried to summarize also the technical problem they claim to solve. In particular the older ones are quite restricted (in their claims; don't ever accept summaries of patents as being representative of what they cover). For instance, EP 407 026 (Distributed system and method for matching of buyers and sellers) sounds like a financial trading technique, but it's actually a distributed computing system. The fact that it processes financial data is irrelevant to its patentability.
The "Method of holding an auction and uses of the method" (EP 1012764) is a business method as such and should never have been granted. In fact, we've started an opposition against this patent on exactly that ground, and I'm quite confident we will win that (e-mail me privately for details).
Ofcause it's very nice that a patent does not cover performing the a software algorithm by hand, but most people do not want to do LZW compression by hand, everytime they want to generate a GIF file. So a patent is infact a monopoly on the application of abstract logical knowledge.
I like your analogy, and I understand where you're coming from. But how do you distinguish between the three Popper worlds in practice? I mean, I can see the definitions, but I wonder how workable they are in practice.
I'm going to google a bit on that and get back to you.
I dissapionted you did not comment on the problem of overlapping property systems that will be legalized with the directive. I had some hope you were interested in a real discussion, but as I understand your comment, mind and matter will become one if we agree on dictionary use.
I'm sorry, I must have missed that comment. I'm just not sure I properly understand the distinction you're making, and that's why I was worried that we were using different definitions for the same thing. And once again, I am interested in a real discussion.
"Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data."
There is no doubt that philosophy of law will be destoyed if it is forced to integrate contradictory and/or meaningless concepts like these.
Please keep in mind that that article sums up present EPO practice. I'm not saying this is how it should be or even that it is consistent (in fact, it isn't). But I do not entirely understand your comments. If my device works on inputs from the physical world (like inputs from a sensor on an industrial robot), then why would that not be sufficient to make it an invention?
a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus" You know, It's a typical ingredient of irrationalist philosophy to belive that everything is the same or exchangable. It's useful for zen meditation - but not for law.
I guess you are too young to talk to your employer about the possible advantges your company could gain from a software patent free Europe, as once it prospered from banning the patent system 100 years ago.
I don't think age has anything to do with it. Right now we're faced with a situation where we can use patents to protect our innovations and R&D investments related to new devices like televisions and DVD players we put on the market. A lot of those innovations involve software, or at least implementations in software. How can I tell the business "Sorry, we can't protect your innovations if you choose to implement it in software; oh, and we can't do anything about competitors emulating your hardware functionality either"???
That's basically the issue. I don't care about "pure software" patents (whatever that may mean). Something that's entirely software or an algorithm is excluded. But if the software is part of a larger system, I firmly believe it should be patentable.
Oh, and as to abolishing patent laws in the 1850's, an important reason was that the patent law we had back then was really bad. And the jumpstart you get from being able to steal everyone else's inventions is nice to get your economy going (we were called "a land of highway robbers" by the rest of the world), but once your own R&D starts to take off, you want patents. That's what the Americans did in the 1790s, and the Japanese in the 1860s. And that's what the Netherlands did in 1912, after -what a coincidence- Philips became a big R&D company.
What about embedded Linux? Or even distros? Don't you think there is money to make there?
Is your company completely stuck in a business model based on software patent protection that arguably stifles innovation?
As we're an electronics firm, our business is selling boxes that do nice things. We have a very large R&D department, and they come up with lots of innovative ideas with lots of effort. The patent system was, from the very start, designed to allow businesses like ours to protect our investments.
In the past, those innovations would be hardware things (like new lightbulbs or new disc-shaped carriers and lasers to read data from them). Nowadays, most of those innovations are realized with the help of software. I simply cannot understand why this makes the situation different; the innovation is just as valuable, for reasons of economy we implement it in software rather than hardware, and then suddenly we can't patent the new television anymore?
But perhaps you don't care?
I don't think that's a fair comment.:-( I do care about the patent system, and I hate it when people get patents on obvious things, because they destroy the reputation the patent system has. Not to mention all the problems it causes in the world. I don't agree with everything you or the FFII say - but that's no reason to say I don't care.
Maybe we're just using the wrong words to express our respective views. Maybe it's the medium. I don't know. I do get the feeling we're not that far off, but you're coming from different principles than I do, and that confuses things.
"Something can be an invention without being patentable"
No, this is the same bug again.
I think we're going to have to agree on which dictionary we will use. The EPC makes "being an invention" one of the requirements for patentability, but not the only one. The light bulb, as originally invented by Edison, is an invention, but it is known and so cannot be patented today (although it was in the 1880s).
Inventions are patentable, and there are no inventions that are unpatentable.
So, you would say that the lightbulb isn't an invention, but rather that it was an invention, I suppose. Ok, I can understand that (it's the common use of the word), but please keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms.
Nevertheless, for the present discussion it does not matter, and the EPC does not consider computer programs as such to be inventions - in both senses of the word.:-)
You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.
True. That's why I was surprised when the EPO Board of Appeals (which btw includes several technically qualified people) came up with the "further technical effect", and made the distinction with "normal technical effects" that all computer programs exhibit. So it is not enough to say "This is a computer program", you have to demonstrate what this particular program does and why that particular effect is technical. I've given some examples in the context of business methods on my site.
You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.
I thought the MP3 encoding patents were held by Fraunhofer, but I could be wrong. My own area of expertise is digital rights management, not signal coding. And I don't think I want to comment in public on patents held by direct competitors of my company.
I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.
Well, you will have noticed by now that I work at the patent department of one of the largest electronics firms in Europe. So I am quite familiar with the state of the case law regarding software and business methods at the EPC. While I agree that the case law leaves much to be desired, I do believe that by now they have worked out a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus. Basically, it doesn't matter that the invention is embodied in software. If it were embodied in hardware, would the resulting effects then be technical? If so, it is patentable (assuming novelty and nonobviousness).
"So they simply moved it into the heading of the article corresponding to 52(2)."
No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong
I'm going to have to take your word for the translations of the EPC into Danish and Swedish. It would be interesting to see how these countries defend being in compliance with the EPC whilst ignoring this provision.
(can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.
"Beresford" refers to the book Patenting software under the EPC by Keith Beresford (ISBN: 0-752-006339). Oh, I see FFII has a review.
According to Beresford, they didn't even have an exclusion for software at all at first. It appeared first in 1971 as a point under discussion in the list of items like "mere discoveries" and "purely aesthetic creations". These "merely" and "purely" qualifications were finally moved to 52(3) when the EPC was adopted.
Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:
Yes. In fact, I've sat through several conferences that purport to teach you how to draft claims to get protection for software as such. It is not quite as simple as this article makes it appear. You can't just say "It's process control software and so it is an invention".
Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.
I am running my website as a private individual and so, by law, cannot infringe on any patents. Further, EP0895689 is not a patent. It's just a published applications, and those have no legal force.
Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?
I am defening the IP of a European software creator, although the software my employer makes is for a large part embedded in hardware. Our innovations were traditionally realized in hardware, and as such clearly patentable. Now that the industry trend is to move to more and more functionality in software, and we still desire to same level of protection for our innovations, you'll understand where I'm coming from. It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software. So a balance has to be struck between "all software is patentable" and "all software-related patents should be abolished."
As a final note, I am not speaking on behalf of my employer, in case that wasn't clear already.:-)
I found a EPC parser bug in "The First Mover Monopoly" [olswang.com] that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".
That's because that article, like me, is used to using these words as legal terms of art. Something can be an invention without being patentable (for example, if it's known). Other things cannot be inventions (for example, surgical methods). It's a matter of definition.
According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.
Absolutely correct, and I think this is still the current EPO practice. But they've split the evaluation up into two separate parts: is it "an invention" (ie not excluded by 52(2)) and second, is the invention obvious? Both are relevant questions when assessing patentability of something, but they're separate questions.
Reducing hard disk access time by adding a cache in RAM is an invention, according to the EPC. It's also extremely obvious, so you still won't get a patent, but that is a different question. Note that this invention nowhere mentions the use or presence of a computer program. It's a technical measure that most likely will be implemented in (OS) software, but that is not relevant to the evaluation.
You can insert "as such" anywhere you want, the meaning will not change.
I didn't insert that. The drafters of the EPC did. And we assume they did that for a reason, namely to lessen the restriction imposed by 52(2) in some fashion. In the first drafts, the "as such" wasn't there at all, but it was put in after objections from particularly the UK (Beresford, p. 19). So, why did they put it in and what does it mean?
And that is why the uninportant 52.3 is not present in Swedish and Danish law.
Actually, Denmark does have it in its patent law:
In particular the following subject-matter or activities
as such shall not be regarded as inventions:... programs for computers
(article 2)
So they simply moved it into the heading of the article corresponding to 52(2).
Swedish patent law doesn't use "as such", but rather says "merely":
The following shall never be regarded as an invention: that which is
merely... a computer program (article 1, second paragraph).
I'm not sure how similar "merely" and "as such" are, but they do seem to indicate the same thing: if what you have is more than just the fact that it's a computer program, then you may well have an invention.
I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.
Don't worry about getting me angry. I'm here exactly because I want to discuss these issues. It's also the reason I set up my website with patent information.
To finally answer your question (hopefully): the EPC, according to the latest case law, excludes only computer programs which do not produce a "further technical effect". That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is not an invention, because then you've claimed exactly a computer program as such.
If the application goes beyond such ordinary computer programs, then you do have an invention. For example, if you realize better control of a steering mechanism with a computer program, then that's a "further technical effect". Maybe the realization is an obvious use of computers, but that is another issue entirely.
I think the important part is: is this a desired interpretation of the EPC, or even, should the EPC have been drafted in this fashion?
You did not answer the question. "So what does the exclusion exclude?"
You're right, I didn't. What I tried to do was explain why computer programs are not always automatically excluded. The EPC is rather unclear on this, despite FFII's claims to the contrary.
The EPC has the restriction that only "computer programs as such" are excluded. Thus, to answer the question "What is excluded?", one must address what this limitation on the exclusion means, and why it was included. Otherwise it makes no sense to state in the treaty that it is only excluded if it is a program as such. If that limitation weren't there, I would agree with you that software isn't patentable.
However, now that this peculiarity is in place, you can't just say (like the FFII article you quoted did) "According to the European Patent Convention, computer programs are not patentable." and then argue that only in the 90's did they suddenly come up with some meaningless 'as such' restriction. That's been in there since 1974, when the EPC came into force. This has to be addressed if you want to argue within the scope of the EPC whether software is patentable.
The EPO has reasoned that the exclusion is for anything that does not solve a problem in technology, and the list in 52(2) is just an illustration of things that, as such, don't solve such problems.
As far as I can tell, the FFII does not address why the "as such" restriction is there, and reasons from German law (which used to require physical causility back in the '70s) how the EPC should have been.
You've hit on exactly the same problem as the Boards of Appeal of the EPO did. If you look at article 52(2), you'll notice that it starts with "The following in particular shall not be regarded as inventions within the meaning of paragraph 1". It then follows with a list of things, including computer programs. Next, article 52(3) says "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." So there must be some kind of limit to this exclusion, otherwise the "only as such" phrase makes no sense.
The Board of Appeals of the EPO reasoned that the things in the list of 52(2) have in common that, when considered as such, they are not of a technological nature. And because it says "in particular", it must follow that an invention, to be patentable, must be within the technological arts. The 'as such' stresses this: a computer program as such is a mere algorithm or abstract thing, but a computer driven by a program is a technological thing and so not excluded because of the 'as such'.
So, basically, the exclusion paragraph of 52(2) and (3) does not exclude anything that wasn't excluded already anyway. It's just a way of stressing the fact that an invention should be technical by enumerating things that clearly are not technical. This is one of the reasons that the EPO tried to get this part of article 52 removed completely back in 2000.
I don't know why the EPC didn't say from the start "An invention shall be of a technical nature". Apparently they thought this was self-evident, and just gave a list of potential borderline cases to be safe.
The EPC only excludes patents on software as such, not on all software-implemented inventions. The Board of Appeals of the European Patent Office has interpreted this provision to mean that you can get a patent on software if it solves some problem in technology (they call it a "technical problem"). You may want to read The patentability of software under the EPC at my website.
In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).
The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.
Slashdot Mirror
I'm one of the lawyers for FTD. The case we started is purely civil law: we ask the court to confirm that downloading for personal use is legal, and that FTD is doing nothing wrong by letting people identify materials available on Usenet that others may want to download. The criminal aspect relates to a statement by BREIN that FTD is engaging in "criminal activities" by offering their platform. We consider this a form of defamation. But acting against defamation is also a civil action.
When you accuse someone of violating a law, you have to show where and how he did that. You usually do this by copy&pasting the text of the statute and explaining how each element applies to what your opponent did. For example, for the cause of action "copyright infringement" you need to prove three elements: (1) your copyright ownership to the work, (2) defendant's access to the work, and (3) similarity with your original. What the court here says is that you have to do more than say "I own the copyright in the work. Defendant had access to it, and what he has published is very similar to my work." That's a formulaic recitation of the elements of a cause of action. Arnoud
(Bad) analogy: we agree that I'll buy your car and I'll pay you $2,000 in consideration. I drive off, but do not pay you. Now you can sue me for nonpayment, but the car's still mine. It's not suddenly a theft because I didn't pay. You only have a contract claim (lack of payment) against me. That's the legal theory.
In this situation, the licensor grants permission to copy, modify and distribute, and the licensee accepts certain obligations in return. So, following the same theory: if the licensee fails to do his part, the permission is not withdrawn but the licensor must sue to make the licensee live up to his part.
Most countries have provisions in their laws that essentially state "if one party fails to perform his obligations under a contract, the other party can delay his performance until the first party comes into compliance again." This is to address exactly this situation. Without such provisions, your phone company could indeed stop giving service yet demand payment. I am not sure if a provision like that would apply to a license agreement, since the licensor is not performing at the time the licensee went into noncompliance.
Arnoud
I read that as "prohibits the distributor from charging *those who create derivative works* for creating derivative works". That makes sense given the "no additional restrictions" language of the GPL. Even if the judge meant "no one may sell his own GPL-derivative work" it's not something to base an appeal on. And not just because this *is* the appeal. That part of the reasoning is not crucial to the judge's finding. Had he omitted that sentence, the rest of the verdict would be just as sensible. Arnoud
This is actually how trademark law works in most countries in the world. The only difference is that renewal tends to be automatic, assuming you pay the renewal fee. So a company could end up paying renewal fees for twenty or thirty years for a trademark that should have been refused at the second renewal, for example.
And once a word is generic, no amount of letters is going to make it a distinct mark again. The problem is of course in the period just before that. The company can then try to turn the tide by writing letters like the one in the original article, although this is often not a success.
You can contribute: ...
Make a list of real patents, taken from the EPO patent register, but reduce and simplify them so that they consist of:
So then I'd have a list of bad patents that should never have been issued. I can make such a list for any field of technology. What would this prove? That bad patents get issued? Sure, we know that. That it's more common in software-related fields to have bad patents? I can't prove that without doing the same for other fields and coming up with some common metric. And coming up with such a metric, and doing the evaluation in all those fields would mean a Ph.D's worth of work.
2. Is the contribution a technical one? Why (not) ?
I fundamentally disagree with the assumption that a technical contribution is necessary for something to qualify as an invention. The EPC is quite clear that something must qualify as an invention and as novel and as having an inventive step and as having industrial application. Therefore, the qualification for "invention" must be separate from novelty and inventive step. And you cannot identify the contribution without doing at least a novelty test, because you don't know what the contribution is if you don't check what the novel aspects are.
So, properly, the evaluation whether something has a technical contribution (which I do agree is absolutely necessary for patentability) cannot be done until after the evaluation of novelty. And that's why the Pension Benefits case rightfully put it with inventive step.
Nevertheless, we can then argue that such things are not inventive and so should not have been patented. But how would this convince the EPC-countries that are not caselaw-based, like Germany, France or the Netherlands? All of these currently allow patents on software-related inventions, the 1976 Dispositionsprogram or the Dutch Switching network) notwithstanding. See e.g. the 1993 "Barcode" (Streepjescode) verdict of the Dutch Patent Office.
I am sure you have the skill and knowledge to find some interesting IP-tech patents that will pinpoint the weaknesses of the directive. You can also look in the horror gallery. You could actually make the Comission resolve the EPO "physical data" inconsistency by doing this.
You still haven't explained to me what this inconsistency is. The EPO tries to resolve the "what is technical" issue with caselaw, and I identified a common theme in their caselaw: If you work with physical data, you're more likely to have a technical invention. That doesn't mean you can simply say "Oh, this data could be real world data, so it's an invention".
I'm not sure that is the problem. Maybe it's the medium. I can only ask you to again read Dispositionsprogramm and "Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention". Read it slowly and think of how to boil a frog. I think the water passed the critical deadly temperature with T 1173/97. The Commission is now about to legalize overlapping legal systems and that will kill BladeEnc and hurt SMEs all over Europe.
Wouldn't you say that the fact that the EPO threw out a pure business method (the pension benefit system) is a signal that they're coming round from the path taken in Sohei? In PBS, the fact that it was software wasn't enough to make it an inventive step.
Nevertheless, I've read the verdict and the Slippery Slope article. The article is written very much from a German point of view (understandably), but it provides no justifications for its premises. Very roughly, it says that the German system has a very good distinction between mind and matter, and that distinction is now getting very blurred, which is bad. Therefore, we must do something. This doesn't answer the question why this is bad.
Further, I do not see why the fact that there's overlap in the legal systems is a problem.
"It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software"
Debugged: "It is simply not fair that an idea could be copied or imitated merely because it could be realized in software"
No, that's not the same as what I said. An innovation is not necessarily a novel idea. If we come up with a technique to make a TV work at 100Hz, then that's not an idea, but a practical realization of an idea ("let's make a more stable picture by scanning at 100 Hz").
It then should not make any difference whatsover whether the technique is realized by a set of chips, by some chips and some software, or by just a bunch of programs. That's an implementation detail.
Copyright protects from both copying an imitation, so there is no need to worry. Perhaps even competition law could be applicable?
Copyright does not help me against someone taking the technical principles, or even the functional realization of my device. Most technical things are unprotected by copyright, precisely because they are technical things that have to be done like that, and not original expressions. So you're free under copyright law to copy my device, and changing the frills and bells to make it look different. And if it looks different, you're outside the scope of my copyright.
Competition law does not help, as we put products on the market ourselves. That means everyone is free to buy one and study it. Competition law thinks this is perfectly acceptable. If there is no legal means to prevent people from ripping off our innovations, then we will get ripped off and eventually go out of business.
We could sell the devices with restrictive license conditions (like the DMCA) that forbid reverse engineering, and then go after people with competition law and contract law. But you really don't want that.
I can understand that you are worried about your company IP. But I think you agree that the law has to be written in the interest of the society as a whole. And perhaps patents on logical functionality is bad even for you?
I agree, the law has to benefit society as a whole. But if you agree that new, technical developments are to be protected by patents, and you know that a lot of new developments is done with (embedded) software, then would you agree that patents should protect those new developments?
But ordinary computer programs that process data, which happen to represent business data, can get patented. Where is the technical effect or 'further technical effect' in this?
Actually, if the data is business data (like monetary values), then that produces no (further) technical effect. You'd then have to look at, for example, whether the amount of data that is transferred is reduced, or something like that. But then it's no longer a business invention, but a data compression technique camouflaged as a business technique.
The EPO examples of business methods you give on your website are examples for solving abstract non-technical problems using a computer.
I've tried to summarize also the technical problem they claim to solve. In particular the older ones are quite restricted (in their claims; don't ever accept summaries of patents as being representative of what they cover). For instance, EP 407 026 (Distributed system and method for matching of buyers and sellers) sounds like a financial trading technique, but it's actually a distributed computing system. The fact that it processes financial data is irrelevant to its patentability.
The "Method of holding an auction and uses of the method" (EP 1012764) is a business method as such and should never have been granted. In fact, we've started an opposition against this patent on exactly that ground, and I'm quite confident we will win that (e-mail me privately for details).
Ofcause it's very nice that a patent does not cover performing the a software algorithm by hand, but most people do not want to do LZW compression by hand, everytime they want to generate a GIF file. So a patent is infact a monopoly on the application of abstract logical knowledge.
I like your analogy, and I understand where you're coming from. But how do you distinguish between the three Popper worlds in practice? I mean, I can see the definitions, but I wonder how workable they are in practice.
I'm going to google a bit on that and get back to you.
I dissapionted you did not comment on the problem of overlapping property systems that will be legalized with the directive. I had some hope you were interested in a real discussion, but as I understand your comment, mind and matter will become one if we agree on dictionary use.
I'm sorry, I must have missed that comment. I'm just not sure I properly understand the distinction you're making, and that's why I was worried that we were using different definitions for the same thing. And once again, I am interested in a real discussion.
There is no doubt that philosophy of law will be destoyed if it is forced to integrate contradictory and/or meaningless concepts like these.
Please keep in mind that that article sums up present EPO practice. I'm not saying this is how it should be or even that it is consistent (in fact, it isn't). But I do not entirely understand your comments. If my device works on inputs from the physical world (like inputs from a sensor on an industrial robot), then why would that not be sufficient to make it an invention?
a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus" You know, It's a typical ingredient of irrationalist philosophy to belive that everything is the same or exchangable. It's useful for zen meditation - but not for law.
I guess you are too young to talk to your employer about the possible advantges your company could gain from a software patent free Europe, as once it prospered from banning the patent system 100 years ago.
I don't think age has anything to do with it. Right now we're faced with a situation where we can use patents to protect our innovations and R&D investments related to new devices like televisions and DVD players we put on the market. A lot of those innovations involve software, or at least implementations in software. How can I tell the business "Sorry, we can't protect your innovations if you choose to implement it in software; oh, and we can't do anything about competitors emulating your hardware functionality either"???
That's basically the issue. I don't care about "pure software" patents (whatever that may mean). Something that's entirely software or an algorithm is excluded. But if the software is part of a larger system, I firmly believe it should be patentable.
Oh, and as to abolishing patent laws in the 1850's, an important reason was that the patent law we had back then was really bad. And the jumpstart you get from being able to steal everyone else's inventions is nice to get your economy going (we were called "a land of highway robbers" by the rest of the world), but once your own R&D starts to take off, you want patents. That's what the Americans did in the 1790s, and the Japanese in the 1860s. And that's what the Netherlands did in 1912, after -what a coincidence- Philips became a big R&D company.
What about embedded Linux? Or even distros? Don't you think there is money to make there?
Is your company completely stuck in a business model based on software patent protection that arguably stifles innovation?
As we're an electronics firm, our business is selling boxes that do nice things. We have a very large R&D department, and they come up with lots of innovative ideas with lots of effort. The patent system was, from the very start, designed to allow businesses like ours to protect our investments.
In the past, those innovations would be hardware things (like new lightbulbs or new disc-shaped carriers and lasers to read data from them). Nowadays, most of those innovations are realized with the help of software. I simply cannot understand why this makes the situation different; the innovation is just as valuable, for reasons of economy we implement it in software rather than hardware, and then suddenly we can't patent the new television anymore?
But perhaps you don't care?
I don't think that's a fair comment. :-( I do care about the patent system, and I hate it when people get patents on obvious things, because they destroy the reputation the patent system has. Not to mention all the problems it causes in the world. I don't agree with everything you or the FFII say - but that's no reason to say I don't care.
Maybe we're just using the wrong words to express our respective views. Maybe it's the medium. I don't know. I do get the feeling we're not that far off, but you're coming from different principles than I do, and that confuses things.
"Something can be an invention without being patentable"
No, this is the same bug again.
I think we're going to have to agree on which dictionary we will use. The EPC makes "being an invention" one of the requirements for patentability, but not the only one. The light bulb, as originally invented by Edison, is an invention, but it is known and so cannot be patented today (although it was in the 1880s).
Inventions are patentable, and there are no inventions that are unpatentable.
So, you would say that the lightbulb isn't an invention, but rather that it was an invention, I suppose. Ok, I can understand that (it's the common use of the word), but please keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms.
Nevertheless, for the present discussion it does not matter, and the EPC does not consider computer programs as such to be inventions - in both senses of the word. :-)
You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.
True. That's why I was surprised when the EPO Board of Appeals (which btw includes several technically qualified people) came up with the "further technical effect", and made the distinction with "normal technical effects" that all computer programs exhibit. So it is not enough to say "This is a computer program", you have to demonstrate what this particular program does and why that particular effect is technical. I've given some examples in the context of business methods on my site.
You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.
I thought the MP3 encoding patents were held by Fraunhofer, but I could be wrong. My own area of expertise is digital rights management, not signal coding. And I don't think I want to comment in public on patents held by direct competitors of my company.
I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.
Well, you will have noticed by now that I work at the patent department of one of the largest electronics firms in Europe. So I am quite familiar with the state of the case law regarding software and business methods at the EPC. While I agree that the case law leaves much to be desired, I do believe that by now they have worked out a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus. Basically, it doesn't matter that the invention is embodied in software. If it were embodied in hardware, would the resulting effects then be technical? If so, it is patentable (assuming novelty and nonobviousness).
"So they simply moved it into the heading of the article corresponding to 52(2)."
No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong
I'm going to have to take your word for the translations of the EPC into Danish and Swedish. It would be interesting to see how these countries defend being in compliance with the EPC whilst ignoring this provision.
(can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.
"Beresford" refers to the book Patenting software under the EPC by Keith Beresford (ISBN: 0-752-006339). Oh, I see FFII has a review.
According to Beresford, they didn't even have an exclusion for software at all at first. It appeared first in 1971 as a point under discussion in the list of items like "mere discoveries" and "purely aesthetic creations". These "merely" and "purely" qualifications were finally moved to 52(3) when the EPC was adopted.
Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:
Yes. In fact, I've sat through several conferences that purport to teach you how to draft claims to get protection for software as such. It is not quite as simple as this article makes it appear. You can't just say "It's process control software and so it is an invention".
Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.
I am running my website as a private individual and so, by law, cannot infringe on any patents. Further, EP0895689 is not a patent. It's just a published applications, and those have no legal force.
Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?
I am defening the IP of a European software creator, although the software my employer makes is for a large part embedded in hardware. Our innovations were traditionally realized in hardware, and as such clearly patentable. Now that the industry trend is to move to more and more functionality in software, and we still desire to same level of protection for our innovations, you'll understand where I'm coming from. It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software. So a balance has to be struck between "all software is patentable" and "all software-related patents should be abolished."
As a final note, I am not speaking on behalf of my employer, in case that wasn't clear already. :-)
I found a EPC parser bug in "The First Mover Monopoly" [olswang.com] that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".
That's because that article, like me, is used to using these words as legal terms of art. Something can be an invention without being patentable (for example, if it's known). Other things cannot be inventions (for example, surgical methods). It's a matter of definition.
According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.
Absolutely correct, and I think this is still the current EPO practice. But they've split the evaluation up into two separate parts: is it "an invention" (ie not excluded by 52(2)) and second, is the invention obvious? Both are relevant questions when assessing patentability of something, but they're separate questions.
Reducing hard disk access time by adding a cache in RAM is an invention, according to the EPC. It's also extremely obvious, so you still won't get a patent, but that is a different question. Note that this invention nowhere mentions the use or presence of a computer program. It's a technical measure that most likely will be implemented in (OS) software, but that is not relevant to the evaluation.
You can insert "as such" anywhere you want, the meaning will not change.
I didn't insert that. The drafters of the EPC did. And we assume they did that for a reason, namely to lessen the restriction imposed by 52(2) in some fashion. In the first drafts, the "as such" wasn't there at all, but it was put in after objections from particularly the UK (Beresford, p. 19). So, why did they put it in and what does it mean?
And that is why the uninportant 52.3 is not present in Swedish and Danish law.
Actually, Denmark does have it in its patent law:
So they simply moved it into the heading of the article corresponding to 52(2).
Swedish patent law doesn't use "as such", but rather says "merely":
I'm not sure how similar "merely" and "as such" are, but they do seem to indicate the same thing: if what you have is more than just the fact that it's a computer program, then you may well have an invention.
I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.
Don't worry about getting me angry. I'm here exactly because I want to discuss these issues. It's also the reason I set up my website with patent information.
To finally answer your question (hopefully): the EPC, according to the latest case law, excludes only computer programs which do not produce a "further technical effect". That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is not an invention, because then you've claimed exactly a computer program as such.
If the application goes beyond such ordinary computer programs, then you do have an invention. For example, if you realize better control of a steering mechanism with a computer program, then that's a "further technical effect". Maybe the realization is an obvious use of computers, but that is another issue entirely.
I think the important part is: is this a desired interpretation of the EPC, or even, should the EPC have been drafted in this fashion?
You did not answer the question.
"So what does the exclusion exclude?"
You're right, I didn't. What I tried to do was explain why computer programs are not always automatically excluded. The EPC is rather unclear on this, despite FFII's claims to the contrary.
The EPC has the restriction that only "computer programs as such" are excluded. Thus, to answer the question "What is excluded?", one must address what this limitation on the exclusion means, and why it was included. Otherwise it makes no sense to state in the treaty that it is only excluded if it is a program as such. If that limitation weren't there, I would agree with you that software isn't patentable.
However, now that this peculiarity is in place, you can't just say (like the FFII article you quoted did) "According to the European Patent Convention, computer programs are not patentable." and then argue that only in the 90's did they suddenly come up with some meaningless 'as such' restriction. That's been in there since 1974, when the EPC came into force. This has to be addressed if you want to argue within the scope of the EPC whether software is patentable.
The EPO has reasoned that the exclusion is for anything that does not solve a problem in technology, and the list in 52(2) is just an illustration of things that, as such, don't solve such problems.
As far as I can tell, the FFII does not address why the "as such" restriction is there, and reasons from German law (which used to require physical causility back in the '70s) how the EPC should have been.
The Board of Appeals of the EPO reasoned that the things in the list of 52(2) have in common that, when considered as such, they are not of a technological nature. And because it says "in particular", it must follow that an invention, to be patentable, must be within the technological arts. The 'as such' stresses this: a computer program as such is a mere algorithm or abstract thing, but a computer driven by a program is a technological thing and so not excluded because of the 'as such'.
So, basically, the exclusion paragraph of 52(2) and (3) does not exclude anything that wasn't excluded already anyway. It's just a way of stressing the fact that an invention should be technical by enumerating things that clearly are not technical. This is one of the reasons that the EPO tried to get this part of article 52 removed completely back in 2000.
I don't know why the EPC didn't say from the start "An invention shall be of a technical nature". Apparently they thought this was self-evident, and just gave a list of potential borderline cases to be safe.
In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).
The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.