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| The Other Side of the Coin -- Why Some Support EU SW Patents |
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Monday, March 14 2005 @ 12:36 AM EST
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A reader sent me an email he received after he wrote to his MEP, Chris Huhne, in the UK. Huhne's Senior Advisor, Sharon Bowles, of Bowles Horton, an EU patent and trademark legal firm, responded. It didn't escape my notice that Mr. Huhne's senior advisor is with a patent firm, one whose clients, they say on the website, include "some of the major leaders in R & D in various electronics fields throughout the world", but let's set that aside for the moment and let her speak. I know some of you may be attending the UK Patent Office's Technical Contribution workshops, some this week, so for you especially I thought it would be good to share this with you, and so I am. I wish to thank Ms. Bowles for permission to do so. Perhaps it will help you to formulate questions and prepare information to share at the workshops. I think you will see that you have your work cut out for you.
In any controversy, I believe the best thing is to listen respectfully to all views, to be sure everyone understands what the others are expressing. What I saw in reading this email is that some supporting software patents have not yet understood what the issues are that those who oppose software patents see. If nothing else, reading this will help them to tweak their presentations. If Ms. Bowles writes this to one Groklaw reader, we can assume the same points are being made to others. Those working in the legal field are trained to listen to every detail when the other side speaks, not to be convinced, but to note the strengths and weaknesses of each side's arguments, so as to answer and strategize effectively. It's how I approach any conflict. A valid question to ask those who want software patents is, Why? Leave aside Microsoft and why we believe they want them for a moment. Are there any sincere reasons others may have or think they have? If so, what are they? There are answers to that question in this email. Publishing it doesn't mean I have altered my views, personally. I hope patents and software get a divorce. But I am interested to know why others see it differently. My primary interest is, at a minimum, to carve out a safe zone for Linux and FOSS. If that can be done, I wouldn't care what patent-depending companies want to do or how many patents they collect or use against each other in their ridiculous serial patent-infringement lawsuits. Is there, I wonder, a way to come up with language or a strategy that can satisfy both camps? Or is it really a black and white question? So, as you read the email, please pretend it is from someone you like a lot and respect, and then try to answer her points in ways you think she can accept or at least consider seriously. The first thing I'd point out to her, and all those who think they can keep the EU separate from the US system, is this article about Microsoft's call for patent "reform" in the US, which ends with this pertinent paragraph, which to me should have been the lead: "Finally, Microsoft believes there should be increased collaboration with patent offices in other nations to help drive harmonization of the global system for patents. Collaboration should include mutual recognition by the USPTO, European and Japanese patent offices the world's three largest patent office operations."
I would hope that would help her to wake up and smell the coffee before it is too late. I see in that paragraph that there is a plan, and getting the EU to adopt software patents is just the first step. **********************
From:
Sharon Bowles
I refer to your recent email to Chris Huhne MEP. I am his
senior advisor and he has asked me to reply on his behalf.
I am sorry this is a very long reply, but I hope you will
get through it all. The length is necessary for a full
understanding because I am afraid that most of the reporting
about what this legislation covers is very wrong, as indeed is some
of the commentary about the procedure. To be thorough I will cover
all of these matters in this reply and I apologise if some of it
repeats what you already know.
It is not quite clear why there is such a belief that it is intended
to lead Europe down the US path because that battle, (such
as it was) was won a long time ago and the proposed legislation both
makes it clear that Europe does not intend to do the same as
the US and provides a defence against further attempts to
force it that way. The Liberal Democrats have always opposed
any extension to the current practice, but as you will see
from this reply, that is not actually what is at issue.
A full background and explanation is given below and I also
attach a copy of the latest version of the proposal (the Common
Position)
and a PDF of an explanatory leaflet produced by the UK Patent
Office.
The Common Position does not change what has been
established practice in the UK and Europe in recent years,
which is and will continue to be more restricted than US
practice. There never was an intention to allow what many
have understood by the phrase 'software patents' and the
Common Position now reflects this much better. The most
important part of the Common Position is the Articles on
pages 8 and 9 and in particular Articles 2, 4 and 4a which
are all short and relatively simple.
The most recent events in the procedure of the proposed
directive is that the Legal Affairs Committee
asked that the directive be returned to them for
another first reading rather than it coming back at this
stage for second reading as would be usual. Liberal Democrats
supported that request which was made so as to enable more
consideration and understanding to be reached. The Commission
President refused that request, fearing it might set too much of a
precedent and because they wanted to make progress on the
legislation. Also, on 7 March 2005, the Council finally approved the
Common Position so the matter is now on its way back to the European
Parliament for second reading.
The process once there is a draft Common Position
(agreed through negotiation and with expert advice) is that
the draft Common Position has to be passed formally
by one of the Council meetings (any Council can do this, and this is
what has now just been done) and then it goes back to the Parliament
for a second reading where it can be amended again, accepted or
refused and it will then go back to the Council.
This to and fro is rather like between the UK Commons and
Lords and is the normal process with nothing getting through
until both agree. It is likely that after this next
Parliament/Council round the deirective will end up in the
'conciliation' procedure, where Parliament and Council
representatives meet together to see if a decision can be reached,
rather than always considering things separately.
In fact it makes no difference to the software industry whether the
directive is passed or evetually falls, because in the absence of
the directive the status quo will be maintained and the Common
Position and the status quo are essentially the same. (In fact the
directive is probably more restricting than the status quo by virtue
of the Articles mentioned above).
The risk if it is dropped altogether is that Europe gets forced in
the
future, via the World Trade Organisation, to accept something that
is more like the US practice, which the current directive would
stave off. Now
to the detail...
FULL EXPLANATION INCLUDING BACKGROUND
Background.
Patents are granted for inventions that are new,
not obvious (have inventive merit) and are capable of
industrial application. These may be products or processes
(methods). Historically legislation has specifically
excluded from patentability some fields such as mathematical
methods, business methods and computer programs which at the
time of their exclusion were considered entirely 'mental
operations' and therefore not capable of industrial
application.
The problem in recent years faced by Patent Offices and
courts has been how to interpret 'computer programs'.
This has become highly relevant, not just because of the
increasing use of computer programs but rather more because
of the nature of things that are done nowadays by computer
programs.
In particular there are now substantial areas of technology
where software has replaced conventional analog or digital
circuits. Examples range from control of mechanical systems
such as an internal combustion engine to control of packet
switching in network routers, which underlies communications
technology.
To be effective a patent must cover the concept as well as
the detail of the invention, so although a computer program
listing might be given as an example of how to perform part
or all of an invention, the patent claims (the bit that
defines, legally, what is covered) would not be so specific
and usually relate to the method steps that are implemented
in the software. (This is why relying on copyright
protection in the listing is not sufficient.) So the
question arose of whether the exclusion of 'computer
programs' covered only listings or extended to claims to a
method that is entirely put into operation through a
program, i.e. is 'software or computer- implemented'.
The European Patent Office adopted the practice that a
'computer-implemented invention' was more than just a
'computer program' and was patentable when there was
also a technical effect because this fulfilled the
fundamental requirement that a patent be 'capable of
industrial application'. This interpretation was also
followed by courts in the UK and Germany and is what we have
had in Europe for some years. There has been pressure from
the US for wider coverage as they have. This has been
resisted (not least by parts of the profession and patent
offices in Europe) but does seem to have given rise to
lasting fear.
More recently, some European countries expressed the opinion
that their courts might take a different view on 'computer
implemented inventions' and deem patents that were to a
method implemented by a program (as were being granted by
the European Patent Office) invalid. At this stage
clarification became desirable for a variety of reasons. One
of these was that if the practice of the European Patent
Office were not upheld in all courts, then the same logic
that caused the EPO to regard these computer-implemented
inventions as patentable (by virtue of being methods capable
of industrial application and belonging to a field of
technology) could also be used to find against the EU in
respect of its TRIPS obligations (Trade Related Intellectual
Property Agreements which are part of the WTO agreements)
under which patent protection for all areas of technology
must be provided. The comments that were made about what courts
might decide was only a theoretical breach, in that it had not
actually happened, but coupled with the uncertainty that the
pronouncements had made the Commission considered it would be best
to confirm a uniform
interpretation.
The Proposals.
The objective is to define the practice that
the EPO has established as applicable in all countries. This
would mean no change to the practice that the software
industry has experienced in recent years in Europe and no
following of wider US practice.
Unfortunately the Commission draft was not perfect in
achieving the objective, and many continued to fear that a
US type of patent coverage was intended as some discussion
of that did take place at an earlier stage, but was
rejected.
Amendments passed by the Parliament at first reading, some of which
were proposed by the software industry, unintentionally made
matters worse. For example the amendments included several
that attempted to redefine 'industrial application' and
'technical effect' which are definitions that have been
in use for decades with a substantial body of law behind
them on a worldwide basis. The new definitions may have
solved a problem (that was not necessarily there) for the
software industry but they also had an impact on other areas
of electronics, potentially excluding from patentability a
range of electronic inventions, such as those implemented
through processing of signal values, for which patentability
had previously never been in doubt. This would have been a
disaster for the European electronics and communications
industries, including many SMEs, and would have left the EU
in an actual rather than just a theoretical breach of its
TRIPS obligations.
The draft 'Common Position' from the Council, did not
include all the wording of the amendments, but has included enough
to make it absolutely clear that for patentability a computer
implemented invention must have a technical effect (i.e. beyond the
ordinary
interactions of a computer and program) and the inventive merit
must relate to that technical effect.
Detail from the Common Position. The Council Common
Position specifically includes the amendment passed by the
Parliament and supported by the Liberal Democrats that "In
order to be patentable, a computer-implemented invention
must be susceptible of industrial application and new and
involve an inventive step. In order to involve an inventive
step, a computer-implemented invention must make a technical
contribution".
Other important parts of the Council Common Position are:
In the Directive: -
A computer program as such cannot constitute a patentable
invention
- Inventions involving computer programs, whether
expressed as source code, as object code or in any other
form, which implement business, mathematical or other
methods and do not produce any technical effects beyond the
normal physical interactions between a program and the
computer, network or other programmable apparatus in which
it is run shall not be patentable.
(Note: this limitation seems to exclude operating systems,
as they are a normal interation, and so one of the preceived
problems of interoperability is solved)
- A claim to a computer program, either on its own or on a
carrier, shall not be allowed unless that program would,
when loaded and executed in a computer, programmed computer
network or other programmable apparatus, put into force a
product or process claimed in the same patent application.
And in the accompanying explanation:
- An algorithm is inherently non-technical and therefore
cannot constitute a technical invention. Nonetheless, a
method involving the use of an algorithm might be patentable
provided that the method is used to solve a technical
problem. However, any patent granted for such a method
would not monopolise the algorithm itself or its use in
contexts not foreseen in the patent.
- The mere implementation of an otherwise unpatentable method
on an apparatus such as a computer is not in itself
sufficient to warrant a finding that a technical
contribution is present. Accordingly, a computer-implemented
business method, data processing method or other method in
which the only contribution to the state of the art is
non-technical cannot constitute a patentable invention.
We do not yet know what amendments may be proposed when the
legislation returns to the Parliament, but on balance it is
probably better to accept something broadly in line with the Common
Position than to amend extensively. Total rejection would be better
than poor amendments again. The disadvantage of rejection is that
the matter would eventually come back again and could end up
worse if it is done under WTO pressure rather than now under
our own volition.
Inventive merit.
In addition to what the directive actually covers, many websites on
the subject have mixed in comments about particular patents (often
US ones
rather than European ones). US and Europe must not be mixed
up, we have different laws. Unfortunately even in Europe
mistakes are sometimes made about granting patents for
something that turns out to be trivial (often these mistakes
are made at an early stage of new practice and before
oppositions and challenges in courts provide better
limitations). There are remedies for this, the problem is by no
means unique to this area of technology, and it should not be used
to confuse the actual issues. In general the European Patent Office
aims to keep the level
of inventive merit high, and would more certainly be more careful if
the directive is passed given both the new conditions and the review
provisions in the directive.
Inter-operability
One matter that some consider is not resolved is that of
inter-operability. Article 4a2, that excludes patents that are just
the normal interaction of a computer and program, may well go some
way to assisting in this by seeming to exclude patentability for
operating systems (a normal interaction?). However, the problem
actually arises not from patents but from copyright. There is a
similar design copyright problem concerning 'must-fit designs', e.g.
allowing spare parts for cars to be made by anyone, and at present
the correct wording to enable that is still being sought. As the
computer inter-operability problem is mainly the result of copyright
(and will be more so if the directive is passed) I have recently
proposed via the UK Patent Office that perhaps the spare parts and
inter-operability point could be considered together.
I am sorry this is so long, but I do hope that you have
found it informative. Please do contact me again if you
require any further information.
Yours sincerely
Sharon Bowles
Senior Advisor to Chris Huhne MEP
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| Authored by: TonyW on Monday, March 14 2005 @ 12:45 PM EST |
| Post corrections here. [ Reply to This | # ]
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| Authored by: TonyW on Monday, March 14 2005 @ 12:47 PM EST |
And please make links clickable.
<a href=http://example.com>Example! </a>[ Reply to This | # ]
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- Off Topic here - sort of - Authored by: pooky on Monday, March 14 2005 @ 01:51 PM EST
- Microsoft Top Lawyer sais the US Patent system must be changed - Authored by: Anonymous on Monday, March 14 2005 @ 02:02 PM EST
- SCOXE's hope for the future.... - Authored by: tiger99 on Monday, March 14 2005 @ 02:27 PM EST
- idea for patent offices - Authored by: ikocher on Monday, March 14 2005 @ 02:33 PM EST
- Please put link syntax under "Important Stuff" when replying -NT - Authored by: raiford on Monday, March 14 2005 @ 02:42 PM EST
- Patents in Other Places - Authored by: Minsk on Monday, March 14 2005 @ 02:49 PM EST
- Cartoon - Authored by: vortex on Monday, March 14 2005 @ 04:23 PM EST
- Patents - Authored by: Anonymous on Monday, March 14 2005 @ 05:16 PM EST
- European jobs - Authored by: Chris Lingard on Monday, March 14 2005 @ 05:32 PM EST
- Lucky charms! - Authored by: Anonymous on Monday, March 14 2005 @ 06:26 PM EST
- SCO stuff - Authored by: Erin on Monday, March 14 2005 @ 09:11 PM EST
- "Microsoft's Sun server fetish revealed" - Authored by: Anonymous on Monday, March 14 2005 @ 09:11 PM EST
- OT: A Plea for the Protection of the Legal Profession - Authored by: swengr on Monday, March 14 2005 @ 09:46 PM EST
- VNUNet have a story they are putting around their connections. - Authored by: Anonymous on Tuesday, March 15 2005 @ 12:01 AM EST
- A Linux Distro for Barbie? - Authored by: kh on Tuesday, March 15 2005 @ 12:38 AM EST
- What if patents applied to literature? - Authored by: Anonymous on Tuesday, March 15 2005 @ 04:45 AM EST
- Document Not Found - Authored by: Anonymous on Tuesday, March 15 2005 @ 05:13 AM EST
- Big companies setting their strategy - Authored by: Chris Lingard on Tuesday, March 15 2005 @ 05:39 AM EST
- Embedded Systems Conference - Authored by: bstone on Tuesday, March 15 2005 @ 07:29 AM EST
- New Hollands article re: restatement of financials - Authored by: fudisbad on Tuesday, March 15 2005 @ 08:09 AM EST
- Only very slightly OT - The lawyers are called in, in Europe...... - Authored by: tiger99 on Tuesday, March 15 2005 @ 08:24 AM EST
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| Authored by: AntiFUD on Monday, March 14 2005 @ 12:56 PM EST |
Please put your comments on GLNPs here please.
---
IANAL - But IAAAMotFSF - Free to Fight FUD
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 01:01 PM EST |
Well, I think that was a very interesting read. They do seem to be addressing
the sticky parts, like interfacing programs which may be patented, triviality,
etc.
If algorithims are strongly held to be non-patentable, and they really exclude
trivial processes (one-click buying! for example) it might not be too bad.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 01:07 PM EST |
Quote: " Inventions involving computer programs, whether expressed as
source code, as object code or in any other form, which implement business,
mathematical or other methods ... shall not be patentable."
All computer programs are mathematical in basis. It is just a real pain to do
that kind of analysis.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 01:09 PM EST |
They claim that this is only putting current practice into law. That would mean
that patents already granted by the EPO should still be valid if the commission
gets this legislation through, right?
Now please take a look at the following
list and decide for yourself if you think they are software patents or
not.
European
Microsoft Patents
That list includes patents on things such as their
XML word format and the CLR (which would make Mono illegal in europe).[ Reply to This | # ]
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| Authored by: overshoot on Monday, March 14 2005 @ 01:09 PM EST |
| Please identify explicit errors (provably wrong statements) here for collection. [ Reply to This | # ]
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- Errors of Fact: TRIPS - Authored by: overshoot on Monday, March 14 2005 @ 01:17 PM EST
- Errors of Fact - Authored by: Anonymous on Monday, March 14 2005 @ 02:01 PM EST
- Errors of Fact - Authored by: Anonymous on Wednesday, March 16 2005 @ 03:29 AM EST
- Technical effect beyond the normal physical interactions - Authored by: James Heald on Monday, March 14 2005 @ 02:39 PM EST
- Errors of Fact: Electronics Industry as distinct from Software Industry - Authored by: Anonymous on Wednesday, March 16 2005 @ 01:25 AM EST
- Errors of Fact: Programs excluded unless they load and execute - Authored by: Anonymous on Wednesday, March 16 2005 @ 02:16 AM EST
- Errors of Fact: Specific counter example EP1160682 - Authored by: Anonymous on Wednesday, March 16 2005 @ 02:44 AM EST
- Errors of Fact: Strawman Argument plus Circular Argument - Authored by: Anonymous on Wednesday, March 16 2005 @ 03:22 AM EST
- Errors of Fact - Authored by: jdv on Wednesday, March 16 2005 @ 02:30 PM EST
- Errors of Fact - Authored by: Anonymous on Wednesday, March 16 2005 @ 06:11 PM EST
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| Authored by: overshoot on Monday, March 14 2005 @ 01:11 PM EST |
| Please post questions that Ms. Bowles should be asked here. [ Reply to This | # ]
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- Questions: Prior Art - Authored by: overshoot on Monday, March 14 2005 @ 01:22 PM EST
- Here's my question - Authored by: Anonymous on Monday, March 14 2005 @ 03:42 PM EST
- Questions - monopoly on algorithm - Authored by: Peter G> on Monday, March 14 2005 @ 03:54 PM EST
- Four for starters ... - Authored by: vortex on Monday, March 14 2005 @ 05:31 PM EST
- Questions: Protection from invalid patents - Authored by: Anonymous on Monday, March 14 2005 @ 06:22 PM EST
- Questions - Implicit Assumption and Software vs Hardware - Authored by: 8oluf7 on Monday, March 14 2005 @ 06:51 PM EST
- Questions: Give some examples of how the law(s) would behave! - Authored by: gribnick on Tuesday, March 15 2005 @ 02:16 AM EST
- Questions: Technical and status quo - Authored by: Anonymous on Tuesday, March 15 2005 @ 03:05 AM EST
- Questions - Authored by: Anonymous on Tuesday, March 15 2005 @ 07:11 AM EST
- Communications Technology, Software Authors and Users - Authored by: Simon G Best on Tuesday, March 15 2005 @ 09:42 AM EST
- Questions - Authored by: gtall on Tuesday, March 15 2005 @ 11:35 AM EST
- Questions - Authored by: Anonymous on Tuesday, March 15 2005 @ 09:41 PM EST
- I need further clarificaion on the text - Authored by: Anonymous on Wednesday, March 16 2005 @ 07:06 AM EST
- More clarifications needed - Authored by: Anonymous on Wednesday, March 16 2005 @ 07:20 AM EST
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| Authored by: davcefai on Monday, March 14 2005 @ 01:14 PM EST |
First of all, kudos to PJ and thanks to Ms Bowles for her exposition.
We can test the potential effect of the proposed legislation against actual
cases in the US.
1. Amazon's "one-click" patent.
2. The Eolas patent.
Would these be patentable in the EU, according to Ms Bowles letter?
I still haven't quite wrapped my mind around the concepts. Some of them seem to
be open to a fairly broad interpretation. However I'm quite sure that there are
Groklawyers who can comment authoritively on this
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 01:16 PM EST |
While I can see the all the problems of software patents, especially the
ridiculous stuff like isnot operators, on the other hand supposing this
scenario:-
Company x puts in three years R&D effort into devising a whole new way of
handling data - even more radical than say the relational database or the
spreadsheet was in its time. The idea is completely new, completely innovative,
and radically changes how organisations can use IT for their business. 4 months
after they release their software M*******t write their own code to deliver the
concept, bundle it as a free upgrade to S*L S****r, and our innovative company
is pretty much out of income. If they can patent their new idea then they have
some protection from that sort of predatory action.
Now supposing that company is prepared to license use of their patent on
reasonable terms, is there any way the Open Source movement can handle that? And
if there is not should there be? Supposing company X is willing to say that
provided we get a royalty of, I dunno, US$5 for every copy in production use in
a commercial situation, we are quite happy to have OSS code delivering our
patent, would that be absolutely incompatible with Open source ideals?
[ Reply to This | # ]
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- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Anonymous on Monday, March 14 2005 @ 01:25 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Anonymous on Monday, March 14 2005 @ 01:27 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: DrStupid on Monday, March 14 2005 @ 01:34 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: locutas on Monday, March 14 2005 @ 01:38 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: kryten_nl on Monday, March 14 2005 @ 01:48 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Philip Stephens on Monday, March 14 2005 @ 01:53 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: mikera on Monday, March 14 2005 @ 02:00 PM EST
- A Fundamental Sticking Point - Authored by: emmenjay on Monday, March 14 2005 @ 02:31 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Anonymous on Monday, March 14 2005 @ 02:38 PM EST
- The Other Side of the Coin -- - Authored by: Anonymous on Monday, March 14 2005 @ 03:00 PM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Anonymous on Monday, March 14 2005 @ 03:34 PM EST
- It's the intangibility! - Authored by: fcw on Monday, March 14 2005 @ 04:25 PM EST
- Ubiquitous reality beats all hypothetical scenarios - Authored by: vortex on Monday, March 14 2005 @ 07:04 PM EST
- Talk to Sun about Star Office and Open Office. - Authored by: Anonymous on Tuesday, March 15 2005 @ 12:47 AM EST
- Why patent? - Authored by: Anonymous on Tuesday, March 15 2005 @ 06:02 AM EST
- The Other Side of the Coin -- Why Some Support EU SW Patents - Authored by: Anonymous on Tuesday, March 15 2005 @ 08:44 AM EST
- Ha, Ha, Ha!! 4 months M$? -- Get Real - Authored by: tgf on Tuesday, March 15 2005 @ 09:34 AM EST
- Your idea is entierly hypotetical - Authored by: Anonymous on Wednesday, March 16 2005 @ 07:35 AM EST
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| Authored by: jesse on Monday, March 14 2005 @ 01:18 PM EST |
A claim to a computer program, either on its own or on a carrier,
shall not be allowed unless that program would, when loaded and
executed in a computer, programmed computer network or other programmable
apparatus, put into force a product or process claimed in the same patent
application.
Emphisis mine.
That "unless"
allows for any program (other than "Hello World").
Lets consider
shopping... (ie, the "one-click" type of patent)
- The user selects
the item. (possible claim)
- The user posts the selection (one click?)
- The
payment is automatically deducted (hey.. a claim)
- The warehouse is
automatically notified (another claim)
- The item is retrieved from a shelf
via automated tools (hey.. another claim.. Could even be automatically
printed/CD/DVD generated if a book/music/movie, but these are only provided as
"examples of results of the invention")
- The item is boxed and labeled via
RFID/laser label printer/... (hey... another claim)
And the "product
or process claimed" is patented...all the way to the users web
browser.
Yes, this is hypothetical. But it would also justify "patenting"
the browser as a required part of the "product or process claimed". ESPECIALLY
if it were a "custom" browser that used XML only, with a "patented" protocol
extension...which is also one of the claims... [ Reply to This | # ]
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| Authored by: eric76 on Monday, March 14 2005 @ 01:28 PM EST |
I can see that a patent that includes claims involving software would be very
useful in many cases as long as the patent wasn't on the software itself. But I
think that would only apply as long as any software claims could only appear in
a dependent claim.
For example, if it were something like:
1) A system comprised of one or more bells and whistles that sound at 8 am to
start the work day, 12 noon to indicate a break for lunch, 1 pm to resume the
work day, and 5 pm to end the work day.
2) Any system of claim 1 with a computer program to actuate the ringing of the
bells and blowing of the whistles.
If claims involving software could never, under any circumstances, appear in an
independent claim, I think that would be a big help.
Or do I misunderstand the difference between dependent and independent claims?
We also need a process making it easier and inexpensive to reopen a patent
evaluation, require working models of all patents, and even allow a substantial
period for public challenges before any patent can be granted and I think that
we would be on the right track.[ Reply to This | # ]
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| Authored by: eric76 on Monday, March 14 2005 @ 01:39 PM EST |
I believe that patents are supposed to be limited to useful inventions.
The underlying assumption is that the inventor is going to use the invention in
some fasion, either for himself or selling products incorporating the invention
to others.
Why not require that the owner of the patent actually be using the invention?
If the owner of the patent is not using the invention, then he doesn't need
protection from someone else.
Requiring the patentholder to be actively using an invention to keep the patent
should slow down some abuses such as submarine patents and the practice of
filing patents for every imagineable alternative form of an invention.[ Reply to This | # ]
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- Usefulness - Authored by: Anonymous on Monday, March 14 2005 @ 01:54 PM EST
- Usefulness - Authored by: Anonymous on Monday, March 14 2005 @ 02:35 PM EST
- Usefulness - Authored by: Anonymous on Monday, March 14 2005 @ 02:52 PM EST
- Usefulness - Authored by: Anonymous on Monday, March 14 2005 @ 05:14 PM EST
- Usefulness - Authored by: Anonymous on Tuesday, March 15 2005 @ 03:48 AM EST
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| Authored by: Chris Lingard on Monday, March 14 2005 @ 01:39 PM EST |
This is the Act that the Council is sending to the European Parliament, for
a second reading. It became a common position in May 2004; and despite repeated
requests has not been discussed. I have added a few comments, to me this Act
would destroy any computing innovation within Europe.
I hate stuff
like this; the assumption that computer programs are some special thing, that
need big business to produce. That you need massive resources to code anything.
And that everything must belong to the company.
The basic problem is
that they do not understand what they are doing. The Commission are lobbied by
big business, and so are the committees that report to the Commission. They have
no experience of working practices, or the needs of the
population.
The Commission should be looking for benefits for Europe,
and not obeying big business; especially foreign companies.
Here is
the "common position" that has been forced upon us.
COUNCIL OF Brussels, 24 May 2004
THE EUROPEAN UNION
Interinstitutional File:
2002/0047 (COD)
PI
46
CODEC
752
NOTE
from: General Secretariat of the Council
to:
Delegations
No. prev. doc. : 9277/04 PI 41 CODEC 693 + ADD
1
No. Cion prop. : 6580/02 PI 10 CODEC 242
Subject :
Proposal for a Directive of the European Parliament and of the Council on the
patentability of computer-implemented inventions
- Political agreement on the Council's common position
Delegations
will find in Annex the text on the basis of which the Council (Competitiveness)
on
18 May 2004 reached a political agreement with a view to the adoption of its
common position on
the above-mentioned proposal.
Changes in relation to 9277/04
ADD 1 PI 41 CODEC 693 are highlighted.
ANNEX
Proposal for a
DIRECTIVE OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the patentability
of computer-implemented inventions1
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 95
thereof,
Having regard to the proposal
from the Commission2,
Having regard to the opinion of the Economic and Social
Committee3,
Acting in accordance with the procedure laid down in Article 251 of
the Treaty4,
Whereas:
(1) The realisation of the internal market
implies the elimination of restrictions to free
circulation and of
distortions in competition, while creating an environment which is
favourable to innovation and investment. In this context the protection of
inventions by
means of patents is an essential element for the success
of the internal market. Effective,
transparent and harmonised protection
of computer-implemented inventions throughout the
Member States is
essential in order to maintain and encourage investment in this field.
1
Commission statement to be entered in the minutes of the Council adopting the
common
position: "The Commission considers that Article 6, read in
conjunction with Recital 18,
permits any acts as described by Articles 5
and 6 of Directive 91/250/EEC on the legal
protection of computer programs
by copyright, including any acts necessary to ensure
interoperability,
without the need for authorisation from the patent's right holder.".
2
OJ
C, , p.
3
OJ C 61, 14.3.2003, p 154.
4
OJ C, , p.
(2)
Differences exist in the protection of computer-implemented inventions offered
by the
administrative practices and the case law of the different Member
States. Such differences
could create barriers to trade and hence impede
the proper functioning of the internal
market.
(3) Such
differences have developed and could become greater as Member States adopt new
and
different administrative practices, or where national case law
interpreting the current
legislation evolves differently.
(4)
The steady increase in the distribution and use of computer programs in all
fields of
technology and in their world-wide distribution via the Internet
is a critical factor in
technological innovation. It is therefore necessary
to ensure that an optimum environment
exists for developers and users of
computer programs in the Community.
They do not seem to know
the difference between source code and binary programs. If the source is secret
and copyright, then you can distribute binaries without much worries. If they
are talking about source; then Copyright would protect it; or do they mean that
a whole system could be patented.
(5) Therefore, the legal
rules governing the patentability of computer-implemented inventions
should
be harmonised so as to ensure that the resulting legal certainty and the level
of
requirements demanded for patentability enable innovative enterprises to
derive the
maximum advantage from their inventive process and provide an
incentive for investment
and innovation. Legal certainty will also be
secured by the fact that, in case of doubt as to
the interpretation of this
Directive, national courts may and national courts of last instance
must
seek a ruling from the Court of Justice.
Does this mean that
any law, no matter how bad, is better than no law at all?
(6)
The Community and its Member States are bound by the Agreement on trade-related
aspects
of intellectual property rights (TRIPS), approved by Council
Decision 94/800/EC of 22
December 1994 concerning the conclusion on behalf
of the European Community, as
regards matters within its competence, of the
agreements reached in the Uruguay Round
multilateral negotiations
(1986-1994)5. Article 27(1) of TRIPS provides that patents shall be
available for any inventions, whether products or processes, in all fields of
technology,
provided that they are new, involve an inventive step and
are capable of industrial
application. Moreover, according to TRIPS,
patent rights should be available and patent
rights enjoyable without
discrimination as to the field of technology. These principles should
accordingly apply to computer-implemented inventions.
Only
the last sentence is wrong. It depends how you define "computer-implemented
inventions"
(7) Under the Convention on the Grant of
European Patents signed in Munich on
5 October 1973 and the patent laws of
the Member States, programs for computers together
with discoveries,
scientific theories, mathematical methods, aesthetic creations, schemes,
rules and methods for performing mental acts, playing games or doing business,
and
presentations of information are expressly not regarded as inventions
and are therefore
excluded from patentability. This exception, however,
applies and is justified only to the
extent that a patent application or
patent relates to such subject-matter or activities as such,
because the
said subject-matter and activities as such do not belong to a field of
technology.
(7a) (Deleted, its content has been incorporated into Article
4a.)
(7b) The aim of this Directive is to prevent different interpretations of
the provisions of the
European Patent Convention concerning the limits to
patentability. The consequent legal
certainty should help to foster a
climate conducive to investment and innovation in the field
of
software.
An interest play on words. By introducing the word
"technology", they manage to negate a previous Convention, and leave the doors
wide open to abuse. Just use the word "technology", and you can patent
it.
(8) Patent protection allows innovators to benefit from
their creativity. Whereas patent rights
protect innovation in the
interests of society as a whole; they should not be used in a manner
which
is anti-competitive.
Patents are monopolies granted by the
State; they do not benefit society as a whole. Their sole purpose it to allow a
company to regain developments costs, by having a
monopoly.
(9) In accordance with Council Directive
91/250/EEC of 14 May 1991 on the legal protection of
computer programs6,
the expression in any form of an original computer program is
protected by
copyright as a literary work. However, ideas and principles which underlie any
element of a computer program are not protected by
copyright.
But the ideas and principles are those of logic
and mathematics.
(10) In order for any invention to be
considered as patentable it should have a technical character,
and thus
belong to a field of technology.
Here is the word
"technology" again; if it is "technology" based, you can patent
it.
(11) It is a condition for inventions in general that, in
order to involve an inventive step, they
should make a technical
contribution to the state of the art.
(12) Accordingly, although a
computer-implemented invention belongs to a field of technology,
where it
does not make a technical contribution to the state of the art, as would be the
case,
for example, where its specific contribution lacks a technical
character, it will lack an
inventive step and thus will not be
patentable.
(13) (Deleted)
(13a) [...] The mere
implementation of an otherwise unpatentable method on an apparatus such as
a computer is not in itself sufficient to warrant a finding that a technical
contribution is
present. Accordingly, a computer-implemented business
method, data processing method or
other method in which the only
contribution to the state of the art is non-technical cannot
constitute a
patentable invention.
(13b) If the contribution to the state of the
art relates solely to unpatentable matter, there can be no
patentable
invention irrespective of how the matter is presented in the claims. For
example,
the requirement for technical contribution cannot be circumvented
merely by specifying
technical means in the patent claims.
(13c)
Furthermore, an algorithm is inherently non-technical and therefore cannot
constitute a
technical invention. Nonetheless, a method involving the use
of an algorithm might be
patentable provided that the method is used to
solve a technical problem. However, any
patent granted for such a method
would not monopolise the algorithm itself or its use in
contexts not
foreseen in the patent.
So the "one click shopping" patent
must be valid.
(13d) The scope of the exclusive rights
conferred by any patent is defined by the claims, as
interpreted with
reference to the description and any drawings. Computer-implemented
inventions should be claimed at least with reference to either a product such as
a
programmed apparatus, or to a process carried out in such an apparatus.
Accordingly, where
individual elements of software are used in contexts
which do not involve the realisation of
any validly claimed product or
process, such use will not constitute patent infringement.
(14) The
legal protection of computer-implemented inventions does not necessitate the
creation
of a separate body of law in place of the rules of national
patent law. The rules of national
patent law remain the essential basis
for the legal protection of computer-implemented
inventions. This
Directive simply clarifies the present legal position with a view to securing
legal certainty, transparency, and clarity of the law and avoiding any drift
towards the
patentability of unpatentable methods such as obvious or
non-technical procedures and
business methods.
(15) This
Directive should be limited to laying down certain principles as they apply to
the
patentability of such inventions, such principles being intended in
particular to ensure that
inventions which belong to a field of technology
and make a technical contribution are
susceptible of protection, and
conversely to ensure that those inventions which do not make
a technical
contribution are not so susceptible.
(16) The competitive position of
European industry in relation to its major trading partners will
be
improved if the current differences in the legal protection of
computer-implemented
inventions are eliminated and the legal situation is
transparent. With the present trend for
traditional manufacturing industry
to shift their operations to low-cost economies outside the
European
Union, the importance of intellectual property protection and in particular
patent
protection is self-evident.
It will definately
improve relations with Microsoft, and other large American companies; they will
love their monopoly
(17) The provisions of this Directive are
without prejudice to the application of Articles 81 and
82 of the Treaty,
in particular where a dominant supplier refuses to allow the use of a
patented technique which is needed for the sole purpose of ensuring conversion
of the
conventions used in two different computer systems or networks so
as to allow
communication and exchange of data content between
them.
(18) The rights conferred by patents granted for inventions
within the scope of this Directive
shall not affect acts permitted under
Articles 5 and 6 of Directive 91/250/EEC on the legal
protection of
computer programs by copyright, in particular under the provisions thereof in
respect of decompilation and interoperability. In particular, acts which,
under Articles 5 and
6 of Directive 91/250/EEC, do not require
authorisation of the rightholder with respect to the
rightholder's
copyrights in or pertaining to a computer program, and which, but for
Articles 5 or 6 of Directive 91/250/EEC, would require such authorisation, shall
not require
authorisation of the rightholder with respect to the
rightholder's patent rights in or pertaining
to the computer
program.
(19) Since the objectives of the proposed action, namely to
harmonise national rules on
computer-implemented inventions, cannot be
sufficiently achieved by the Member States
and can therefore, by reason of
the scale or effects of the action, be better achieved at
Community level,
the Community may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty. In accordance with the
principle of
proportionality, as set out in that Article, this Directive
does not go beyond what is
necessary to achieve those objectives.
HAVE
ADOPTED THIS DIRECTIVE:
Article 1
Scope
This Directive lays down rules for the patentability of
computer-implemented inventions.
Article 2
Definitions
For the purposes of this Directive the following
definitions shall apply:
(a) "computer-implemented invention" means
any invention the performance of which involves
the use of a computer,
computer network or other programmable apparatus, the invention
having one
or more features which are realised wholly or partly by means of a computer
program or computer programs;
(b) "technical contribution" means a
contribution to the state of the art in a field of technology
which is new
and not obvious to a person skilled in the art. The technical contribution shall
be
assessed by consideration of the difference between the state of the
art and the scope of the
patent claim considered as a whole, which must
comprise technical features, irrespective of
whether or not these are
accompanied by non-technical features.
Article 3
Computer-implemented inventions as a field of
technology
- Deleted -
Article 4
Conditions for patentability
In order to be patentable, a computer-implemented
invention must be susceptible of industrial
application and new and involve an
inventive step. In order to involve an inventive step, a
computer-implemented
invention must make a technical contribution.
Article 4a
Exclusions from patentability
1.(new) A computer program as such
cannot constitute a patentable invention.
2. A computer-implemented
invention shall not be regarded as making a technical contribution
merely
because it involves the use of a computer, network or other programmable
apparatus.
Accordingly, inventions involving computer programs, whether
expressed as source code, as
object code or in any other form, which
implement business, mathematical or other methods
and do not produce any
technical effects beyond the normal physical interactions between a
program
and the computer, network or other programmable apparatus in which it is run
shall
not be patentable.
Article 5
Form of
claims
1. Member States shall ensure that a computer-implemented
invention may be claimed as a
product, that is as a programmed computer, a
programmed computer network or other
programmed apparatus, or as a process
carried out by such a computer, computer network or
apparatus through the
execution of software.
2. A claim to a computer program, either on
its own or on a carrier, shall not be allowed unless
that program would,
when loaded and executed in a computer, programmed computer
network or
other programmable apparatus, put into force a product or process claimed in
the
same patent application in accordance with paragraph 1.
Article 6
Relationship with Directive 91/250 EC
The rights conferred
by patents granted for inventions within the scope of this Directive shall
not
affect acts permitted under Articles 5 and 6 of Directive 91/250/EEC on the
legal protection of
computer programs by copyright, in particular under the
provisions thereof in respect of
decompilation and interoperability.
Article 7
Monitoring
The Commission shall monitor
the impact of computer-implemented inventions on innovation and
competition,
both within Europe and internationally, and on European businesses, especially
small
and medium-sized enterprises, and the open source community, and
electronic commerce.
Article 8
Report on the effects of the
Directive
The Commission shall report to the European Parliament and
the Council by [DATE (three years
from the date specified in Article 9(1))] at
the latest on
(a) the impact of patents for computer-implemented inventions on
the factors referred in
Article 7;
(b) whether the
rules governing the term of the patent and the determination of the
patentability
requirements, and more specifically novelty, inventive step
and the proper scope of claims,
are adequate, and whether it would be
desirable and legally possible having regard to the
Community's
international obligations to make modifications to such rules;
(c)
whether difficulties have been experienced in respect of Member States where
the
requirements of novelty and inventive step are not examined prior to
issuance of a patent, and
if so, whether any steps are desirable to
address such difficulties;
(ca) whether difficulties have been experienced
in respect of the relationship between the
protection by patent of
computer-implemented inventions and the protection by copyright of
computer programs as provided for in Directive 91/250/EEC and whether any abuse
of the
patent system has occurred in relation to computer-implemented
inventions;
(cb) how the requirements of this Directive have been taken
into account in the practice of the
European Patent Office and in its
examination guidelines;
(cc) the aspects in respect of which it may be
necessary to prepare for a diplomatic conference to
revise the European
Patent Convention;
(cd) the impact of patents for computer-implemented
inventions on the development and
commercialisation of interoperable
computer programs and systems;
(d) Deleted.
Article 8a
In the light of the
monitoring carried out pursuant to Article 7 and the report to be drawn
up
pursuant to Article 8, the Commission shall review the impact of this
Directive and, where
necessary, submit proposals for amending legislation to the
European Parliament and the Council.
Article 9
Implementation
1. Member States shall bring into force the laws,
regulations and administrative provisions
necessary to comply with this
Directive by ... (twenty-four months from its entry into force)
at the
latest. They shall forthwith inform the Commission thereof.
When Member
States adopt those provisions, they shall contain a reference to this Directive
or shall be accompanied by such a reference on the occasion of their
official publication.
Member States shall determine how such reference is
to be made.
2. Member States shall communicate to the Commission
the text of the provisions of national
law which they adopt in the field
covered by this Directive
Article
10
Entry into force
This Directive
shall enter into force on the twentieth day following that of its publication in
the
Official Journal of the European Communities.
Article 11
Addressees
This Directive is addressed to the Member
States.
Done at Brussels,
For the European Parliament
For the Council
The President The
President
________________________
[ Reply to This | # ]
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| Authored by: nb on Monday, March 14 2005 @ 02:21 PM EST |
| I have a template letter to Members
of the EU Parliament and I'm looking for volunteers in EU countries who will
personalize the letter, translate it into their country's language, print it
out, and then send it to their country's MEPs. (I'm not sending them all
personally both because of time constraint and because I think it'll be more
effective whenn the letter comes from the MEP's own country). If you're willing
to help, please contact me by email at nb@norbert.ch [ Reply to This | # ]
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| Authored by: danielpf on Monday, March 14 2005 @ 02:44 PM EST |
As mathematical logic tells us, there is no fundamental differences between a
integer number and an algorithm. There is no fundamental difference between an
algorithm and a program, which is just a longer string of bits. There is also
no fundamental difference between a program and a device, because all programs
need a physical support to operate, and all devices are to some extent
programmed to operate in a specified way.
Babbage's computer was supposed to work with mechanical parts. The electronic
computers have worked with widely different physical components, even prototypes
of hydraulical computers have been built.
Biological beings work also according to some DNA programs, and brains can
obviously be programmed (to multiply two numbers a brain may be programmed to
move a pen on paper according to a learned algorithm). So the debate can be
extended to biological and intelligent systems.
As a consequence, the logic behind patent appears flawed, because the
distinction between physical devices and numbers is not really what matters.
As long as this recognition is not made the debate about what can be patented
will continue.
My opinion is that what one might wish to protect is a certain information
content. One could define an information content (in the sense of information
theory) which would mark the distinction between the too simple and the
sufficiently elaborated and complex to deserve some time limited protection.
Only beyond a certain level of complexity could a work be protected. With time
the threshold level of information required to reach IP protection would
increase. The old obvious findings would become progressively public domain,
and the public domain content would automatically grow, not shrink as now with
trivial patents.
Of course the above method is too simple to be patentable!
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:02 PM EST |
Thought I would share the 2 replys I have had from my MEPs since writing to 4 of
them last week:
----------------------------------------------
Thank you for your email regarding the software patents. Please find below the
reply given by our Internal Market Spokesman Mr Malcolm Harbour MEP on this
issue:
Thank you for your letter and for registering your concerns about the proposed
Computer Implemented Inventions Directive.
As you say, the Council Presidency has now formally adopted the Common Position
and the European Parliament will now consider the proposal at second reading.
The Council was entitled to do this under its rules of procedure, which are the
responsibility of Member Governments, not the European Parliament. However, the
Directive must still be approved by
the European Parliament before it becomes EU Law, and we have full rights to
amend it.
We will now be evaluating the adopted text to see whether it achieved its stated
objectives; to clarify existing EU Patent Law and provide patent inspectors with
a common framework within which to examine and if appropriate, grant patents for
genuine innovations involving digital technology. An explicit objective of the
proposal is to ensure that computer software or business methods that do not
involve new innovative concepts, making a technical contribution are excluded
from patents.
This will give the EU a distinctive and different position from the US and
Japan.
We need to consider the potential effect of the Directive on software
development. I think that the problems here can often be exaggerated.
There is little evidence from the USA that software development has been slowed
down by the US patent regime. If the EU Directive is passed, it will be more
restrictive than the current US patent environment. There is little sign from
the USA, of large companies pursuing small companies for patent enforcement
-evidence suggests that the opposite is the case. Also, patent specialists
consider that the passing of the EU Directive will exclude the attempted
enforcement of existing US patents across the EU. We may need to tighten up the
proposal to ensure that this happens.
We are also especially concerned to protect innovative companies,especially
small firms, using digital technology to produce genuinely original technical
solutions. We have been contacted by many of them and they are very concerned
that they may be excluded form the patent regime by inappropriate amendments to
the EU proposal. Patent royalty income is very important to these companies and
is a major incentive to innovative research.
In the end, the Parliament must balance all the arguments and reach a sensible
solution.
Yours sincerely,
Malcolm Harbour
Dr Charles Tannock MEP
London Region
Vice-Chairman EP delegation to EU-Ukraine PCC
Vice-Chairman Human Rights subcommittee of EP
EPP-ED Deputy Coordinator AFET
------------------------------------------------
Thank you for your letter concerning the Directive on the Patenting of Computer
Implemented Inventions.
The Legal Affairs Committee voted unanimously, with the exception of the
Rapportuer Michel Rocard, to ask for a re-consultation on the Directive. This
vote was taken in the full knowledge that the request for a re-consultation is
only a Parliamentary rule and is not part of any inter-institutional agreement.
We had hoped that the Commission would respect our vote and put forward a new
proposal. The Luxembourg Presidency however was determined to reach a common
position with the 25 member states and was not prepared to consider a
re-consultation.
We are now in the position of commencing the 2nd reading of the Directive. As
far as our negotiating position is concerned, the Labour MEPs remains
unchanged:
· We are not in favour of the patenting of software as in the US.
· Europe needs a uniform legal approach to stop the drifting towards extending
patentability to inventions, which would not have been traditionally allowed,
and to stop patentability of pure business methods, algorithms or mathematical
methods.
· Software products as such, must not be patented.
· Opensource software must be allowed to flourish and the Commission must ensure
that this Directive does not have any adverse effect on opensource software and
small software developers.
Patents and the threat of litigation must not be used as an anti-competitive
weapon to squeeze out small companies.
Furthermore I and my colleagues are supporting a UK campaign for a defence fund
for small companies to protect themselves from litigation abuse by dominant
market players.
Please be assured that the Council of Ministers and the Commission cannot ignore
our views as democratically elected Members of the European Parliament. Unless
we get agreement between the three institutions (Parliament, Council and
Commission) on this Directive then there is no guarantee that this law will be
passed.
Robert Evans MEP
[ Reply to This | # ]
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| Authored by: locutas on Monday, March 14 2005 @ 03:04 PM EST |
| Assuming the above quoted letter describes the state of existing and proposed
European patent law, I personally see plenty of room for compromise. If the
proposed European patent law only refers to technical processes, or as I believe
American law puts it, processes for "transforming matter", then the law can
dispel most of our concerns by stating clearly that a patent holder can only
enforce a patent when the allegedly infringing user actually produces a physical
article. For example, suppose I invented a process to lathe bonded
steel/aluminum. Suppose I implemented this process purely in software, so any
computer-driven lathe could perform it. In the model of patents I could live
with, anyone could write and distribute a program containing my (patented)
method. They could run it to produce a file of instructions for operating the
lathe, and test those instructions against a program that analyzes metal
strength. They could produce a simulated picture of a finished article on a
computer screen or a plotter. They could, in fact, do anything except load a
piece of bonded steel/aluminum into the lathe and produce an article. To make
the article, to transform the actual matter, they would need to license the
patent. Standard free speech guarantees would cover the use, transmission,
analysis, and discussion of the information in the algorithm; the patent would
only cover the actual creation of a physical article. This brings me to
another point; I believe we have to resist software patents as an outrage
against free speech (remember what the "free" in "free software stands for), or
we can't resist it at all. I believe the guarantees of free speech, repeated in
nearly every constitution in the world, prohibit the state from granting a
monopoly over any form of expression. After all, if Microsoft can patent the
practice of inserting the word TODO into a computer program and compiling a "to
do" list, what prevents Jerry Falwell from patenting the idea of having two
naked people make love in front of a movie camera (and then never license the
patent). Monopolies on ideas lead to the control of ideas, and most
constitutions forbid that. I believe that if we want to resist software patents,
we have to base our case on pure freedom of speech and expression. No reform, no
exemptions for FOSS will free (that word again) us from state-granted monopolies
over ideas. Let me also say that I do not believe that software patents
necessarily present a serious problem for free and open source development. I
believe that with millions of smart, creative people working on free and open
source software, and hundreds of firms willing to spend big money for our
products, we could very easily build up a "defensive" patent portfolio that
would stop and predatory company in its tracks. We can defend ourselves in a
patent war. If we want to avoid the annoyance and expense of such a war, I
believe we need to assert our right of free speech and free expression against
software patents. ---
John G. Spragge [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:12 PM EST |
In the words of Master Yoda - Once you start down the dark
side of patents, forever consume you they will.
Let one in, let them all in. It's how all sticky laws get
in. Introduce a similar but much more polite law, and
then when people have gotten used to it, amend it bit by
bit over time until you get the original law in that you
wanted in the first place, but that people were horribly
opposed to.
I say down with the EU commission, burn the bastards.
Dave [ Reply to This | # ]
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| Authored by: kawabago on Monday, March 14 2005 @ 03:27 PM EST |
We have software patents but only when the software operates a machine that does
something, ergo the invention. The software would not get patent protection if
used in some other capacity than the patented invention. The Canadian system
seems to work fairly well so this might be an acceptable compromise. If they
can be believed and trusted, which I doubt from their actions.
---
Life is funnier from the far end.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:32 PM EST |
Gates up to old tricks over intellectual property rights
http://linuxtoday.com/developer/2005031400732OSMSLL
And again the poleticians and patent offices prove how dumb they all are.
Yoda1
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:48 PM EST |
Any method of patenting software is unaceptable unless the procedure includes a
"waiting period" of several months where the invention is posted and
anyone, anywhere in the world, has a chance to point out the prior art that
invalidates it.
There should be a hefty fee for posting the invention that is forfeit if there
IS prior art.
The community of software developers is more integrated than any other group,
perhaps, in our use of the internet. It is ridiculous to award patents without
using this inexpensive resource to avoid legal procedings AFTER the patent is
awarded that might, at GREAT cost, see justice done.
- Precision Blogger
http://procision-blogging.blogspot.com
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:55 PM EST |
"Historically legislation has specifically excluded from patentability some
fields such as mathematical methods, business methods and computer programs
which at the time of their exclusion were considered entirely 'mental
operations' and therefore not capable of industrial application."
The basic flaw lies in this sentence. Where does this come from? Is this in law
somewhere?
I don't believe that the exclusion of mathematical methods, algorithms, etc was
because they were "considered entirely 'mental operations' and therefore
not capable of industrial application".
I'd first like to point out that mental operations are quite capable of
industrial application, that's precisely why industrial processes require human
oversight. The reason they haven't been patented is because if someone tried to
file a patent on thinking, they'd be laughed out of town.
I believe a better description of the original intent would be "because
they are operations of fixed principles that are of such broad and general
application as to not be subject to claim".
Somewhere along the line someone managed to redefine that intent, resulting in
the current mess.
While I disagree with many of her 'points', I don't think there can be any
meaningful discussion of them as long as this fundamental misconception is the
underlying basis for her argument.
If any method or concept becomes fair game as long as there is an industrial
application of it, then you can debate inteoperability or interfaces all day,
the patent will still be issued because ALL methods have industrial application
at some level.
The only difference between the "mental" operation and the
"computer implemented" operation is the processor performing it (brain
-vs- cpu). If it wasn't patentable as a thought process, then it shouldn't be
patentable as a computer process.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 03:56 PM EST |
There are some seriously worrying assertions made above....
1) "In particular there are now substantial areas of technology where
software has replaced conventional analog or digital circuits. Examples range
from control of mechanical systems such as an internal combustion engine to
control of packet switching in network routers, which underlies communications
technology."..
I don't see how software that does this sort of thing can be in anyway
patentable, as it is simply replicating something that already exists, the very
definition of obvious
2) "The new definitions may have solved a problem (that was not necessarily
there) for the software industry but they also had an impact on other areas of
electronics, potentially excluding from patentability a range of electronic
inventions, such as those implemented through processing of signal values, for
which patentability had previously never been in doubt"
Again, if software if merely replicating what was previously done in hardware
(electronics) it's surely obvious. but more concerning is that here she is
arguing that 'signal processing' is patentable.
The most basic definition of a(ny) computer program
input-> process -> ouput
is itself the same definition as 'signal processing'.
Also mentioned "...any patent granted for such a method would not
monopolise the algorithm itself or its use in contexts not foreseen in the
patent" merely glosses over the fact anyone who has any nouse, merely adds
a claim for the 'extensive applicability of the claims encompasses uses as yet
unforseen by the inventor'.
Software does not stand in isolation, it's purpose is to drive interaction
between two devices as a result of received signals. In an industrial age, much
advancement was made through mechanical and chemical application to bring about
massive and rapid improvements in productivity.
Combine widget A and widget B and you get a new Gadget.
the invention the 'reward' is granted for is the Gadget, whether the gadget is a
cog or a process for re-combining DNA.
Software, takes something you already know, and gives it back to you , or on to
something else, to subsequently process, with optional processing in between.
Software is never at the 'end' of anything, most commonly it is passed to a
display device which basically then shows you what you already know. Seeing as
you have to have the data going in defined for the software to process it in the
first place.
Software cannot process something it does not know, it can only do nothing,
process it, or crash horribly. Guess which one is least secure?
The 'Art' then is in the presentation and the processing.
To any competent programmer, if the output is defined, the rest is obvious, it's
just construction and writing, take A from X, translate to B and present to Y,
where translate is merely a level of complexity, and maybe math, to be dealt
with. The complexity is unconstrained, can anyone truly comprehend the amount
of technology involved, in taking my thoughts (A), from a keyboard (X) and
Translating it to a text (B) and presenting it to your display (Y)
Yet it is nothing more than a few million iterations of 'read, translate,
write', your imagination is only limited by connectivity,capacity and speed.
That only leaves presentation/output, which would seem to imply that allowing
any patent claims at all in any relation to software, would be to allow someone
to be be able to control the display/presentation/output of something I already
know
A Programmer.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 04:49 PM EST |
My viewpoint is that unless the language of the law is perfectly exact then
unscrupulous corporations are going to use the wriggle room to persecute their
competitors. I would go further and say that the only way to discourage this
behavior is to make it transparently clear that no software is patentable. Even
the slightest doubt will encourage a big corporation with dubious {isnot}
patents to suppress small companies or individuals who cannot afford to fight
back.
Jane[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 05:03 PM EST |
So in fact, the choice seems to be :
do it bad now alone, or
do it worst later, because of Trips.
But who agreed to Trips ? How can people ask revocation of bad international
agrements ?[ Reply to This | # ]
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| Authored by: pesc on Monday, March 14 2005 @ 05:07 PM EST |
Article 4a.1 in the Commission's position says
A computer program as
such cannot constitute a patentable invention
I would be much happier
if it said that publication of a computer program as such cannot constitute a
patent infringement. Otherwise, the patent law is really in conflict with
(IMHO) much more important laws about the right to publish your own written
works.[ Reply to This | # ]
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| Authored by: AdamBaker on Monday, March 14 2005 @ 05:11 PM EST |
I received the same standard answer from Ms Bowles and sent her my comments on
some of the points in it last night. She actually answered most of my points in
her prompt reply which contained some useful bits of information.
She believes that further ammendments are possible rather than just
reintroducing previous ones although she needs to double check that.
She accepted my point that the current patent system is not ideal, suggesting it
was better suited to the requiremnts of the pharmaceutical industries but
pointed out the required reform needs to occur at a global level, not just EU.
Of course there needs to be some driving force for the global reform but the EU
isn't well structured to do that.
She seems to have pretty much expected the commissioners statement that if the
directive is rejected by the parliament it will just be dropped. Interestingly
her final suggestion was the same as the thought I had just after sending the
email:
The best chance to get a proper discussion of all of the issues involved is for
the parliament to reintroduce an ammendment that is unacceptable to council.
This will force the directive to enter the conciliation phase where a morew open
discussion is possible.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 05:21 PM EST |
This article is great food for thought. Got to thinking about alternative
patent laws that still meet obligation requirements. A dialogue about such
possibilities seems like an important activity to engage in. The goal is to
come up with a way of meeting agreements while neutering the more egregious
possibilities by adding new wrinkles.
To start it off, perhaps it is
worthwhile considering whether patent laws could be revamped to implement a
strong merger doctrine or perhaps change the nature of patent
ownership.
Merger for Patents
The problem with some
patents is that there may be only one known way of accomplishing something. In
copyright they have very reasonable Scenes a Faire and Merger doctrines. You
don't get a monopoly on the idea itself. There has to be multiple ways of
expressing it or you can't obtain copyright protection on the idea.
I
cannot fathom why patents do not have a similar doctrine with teeth (not just
patent misuse) with regard to function or business purpose. Grant applications
for a truly better mousetrap, but forbid patents on "the mousetrap". The truly
odious patents seem to be foul because of this sort of merger problem. A patent
on one click shopping? No, but a patent on a particular way of implementing it:
possibly. Every patent application would be required to show an alternative way
of implementing the same functionality before it could be
granted.
Perhaps many types of patents will not be affected, however two
of the patent types with serious issues might very well be: interaction and
interoperability patents. You can patent the method of constructing the XML
format (so long as another is provided), but not the XML format itself, as
granting restriction on that could be said to run afoul of merger. You can
patent a method for calculating a tabular display, but not that tabular display
itself.
Ownership Structure Change
Another avenue is
revamping the basic rewards-to-business structure. The rationale for patents is
the carrot for inventiveness and effort. Current patents have individual
inventors. What would be the effect of ditching the possibility of assignees,
making it impossible to transfer rights to anyone else, and if licensed it must
be licensed non-exclusively or not at all? Would patent thickets even be
practically possible?
Obviously it would wipe out research labs as we
know them but wouldn't something else spring up in its place? Plus perhaps this
can be solved by having some preferential licensing terms for employers. More
importantly, it is critical not to ignore some possible consequences of removing
the possibility of exclusive licenses.
First, without severe patent
thickets the startup route is more accessible for those inventors who wish to
commercialize their inventions themselves. In fact, there may be strong
encouragement if one is not required to license to anyone.
At the same
time inventors who do not commercialize themselves can still have a monopoly yet
the system ensures the possibility of competitors since licensing cannot be
exclusionary.
Neither solves the problems for FOSS, admittedly, but
they're only suggestions to try to start the ball rolling. Any improvement,
IMO, is to be welcomed. Hopefully everyone starts up dialogues on useful
reform. This scheme could appeal to those thinking of patent rights as a form
of natural right. The regime might be lumped in as part of the "limited" aspect
of "limited monopolies". Yet this would be a limited monopoly grant yielding an
interesting carrot structure.
IANA (I am Not Anonymous) [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 06:06 PM EST |
First, nice to see Mrs Bowles and Mr Huhne have a well-informed opinion of the
topic and have good intentions. However the reply completely misses the point.
Why? They are interpreting the proposal the "best possible" way when
it comes to software patents. Indeed, the interpretation is sound and viable,
but it is not the only possible one, and they neglect to tell you that you can
reinterpret the meaning of the current proposal (and the current state of the
law). Courts tend to simply follow the exact letters of the law without
considering too much the "spirit" behind the law which Mrs Bowles
explains in such verbosity.
So just assume that if something does not contradict the letters of the law, it
will be upheld by courts.
"How-to-file-a-patent-for-an-algorithm-and-get-it-granted-in-Europe"
Defendants of the proposal like to point to the phrase "technical effect
that goes beyond the normal interaction of a program and a computer". Let's
say you want to protect your newly-developped compression algorithm; it is a
mathematical transformation, so it obviously does not produce a technical
effect, right?
Wrong. Since it allows to represent information in less bits, you lay claim in
your application to "methods and procedures to reduce the power consumption
of a volatile-state data storage device while retaining the same amount of
information...." See? It is easy -- same information, less bits, less leak
current...
By the way, it is basically impossible to use this algorithm in any
non-infringing way (so much for "not monopolising algorithms"):
storing fewer bits will *always* reduce power consumption....
We see, compression algorithms of all kinds are actually rather easily patented.
Exercise at home: Try to come up with similiar wording for a) cryptographic
transforms (Hint: avoid computers altogether in your patent application, maybe
try something involing telephones); b) file system layouts (I guess you can make
something out of "access time reduction")
Before you ask: Yes, a patent has already been granted on exactly this basis,
and it has been upheld in court (!) because the court considered reduced power
consumption sufficient "technical effect".
If you are sufficiently creative in your wording, chances are your application
for a patent on an algorithm will be granted. The patent system is simply broken
beyond repair in this respect.
But I have a proposal (or two) to make:
- let the patent office be the defendant in attempts to nullify a patent; this
means that the applicant has to provide sufficient material for the patent
office to defend the patent itself; if the invention is silly patent officers
will hopefully be less than enthusiastic in enforcing it
- make the patent office accountable for wrongly-issued patents (if it is
defendant as suggested above it has to pay attorney and court fees in case a
patent is not defendable); it is I think the only way to put pressure back to
the office not to grant silly patents
[ Reply to This | # ]
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| Authored by: beserker on Monday, March 14 2005 @ 06:16 PM EST |
| After googleing for a while I still haven't found an answer to this question.
The only references I've found read like marketing blurbs. i.e. I'm not looking
for 'think of it like X', I'm looking for a definition. According to
note that PJ posted there is supposedly a wealth of precedent that actually
defines the term (anybody have a link to this info??). The thing that disturbs
me is that based on what i've seen so far there doesn't appear to be any lower
limit on how much technical effect is needed. This is odd in that software is
only useful to the extent that has at least some external effect. While
it may not be possible to patent purely algorithmic constructs, patents could
cover anything that is actually useful (maybe thats the point?). I'm don't think
that I buy the argument about operating systems not being patentable. For
instance, virtual memory performance optimization has everthing to do with how
the physical disk head movements are scheduled. This sounds an awful lot like a
'technical effect' to me.
---
"Outside of a dog, a book is man's best friend,
Inside of a dog, its too dark to read."
- Groucho Marx [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 06:31 PM EST |
It is fine to talk about the dangers of software patents but these problems are
really just the same old problems shared by all patents. The only real
difference is software can be usefully written by anyone while "industrial
processes" mattered to a smaller number of organizations or individuals
with the capital to use them. It is only a difference of degree.
Patents have one overriding flaw which has always been there. People act like
it will always be and never even discuss it. Patents are preemptive. They
grant monopoly control over any similar work regardless of its provenance.
Copyright does not share this property. If one does his or her own work
another's copyright is no threat. With patents the threat of an infringement
suit is ever present.
At the risk of bringing the concept of justice into a forum which is primarily
about law let me say I find this preemptive property thoroughly unjust. To
claim ownership over work another person did which was not copied or derived
from yours is no different from extortion.
Patents need to be reformed to limit infringment to cases where there is actual
copying. Free riding competitors who simply copy an inventor's work and take it
to market would still be subject to infringment. Others who do their own work
could do so with some confidence they will not be losing their shirts in court.
Impractical, some may complain. Too hard to demonstrate copying. What of the
new wonder drug which cost millions to prove in clinical trials but is trivial
to make in the lab? Resolving these questions is not out of reach. It is
easy to see who paid for the trials and who did not. For other things the same
kinds of tests which work for copyright such as detailed similarity can be
applied. Yes, the goal is to only forbid clear knock-offs. If a few less clear
knock-offs slip by society will still be much better served than by having the
extortion by patent situation we have now.
The appropriate standard is "the knowledge of how to do this useful thing
exists because the inventor showed us how" not "the inventor did it
first" and not "the inventor made other things we care about depend on
using this invention too".
Software only makes the situation more clear. The problem with patents has been
there all along. I work for a company that nearly went out of business because
it put an on/off switch on the barcode scanners it made. You see, such switches
when placed on handheld barcode scanners are patented.
Anyway, my apologies for bringing up arguments of justice here. I hold the
heretical view that what respect the law deserves derives from its being a human
approximation to justice. Law without justice is merely power.
[ Reply to This | # ]
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| Authored by: CustomDesigned on Monday, March 14 2005 @ 08:42 PM EST |
The quoted paragraphs make it clear that a software program cannot be patented,
and that an algorithm cannot be patented, and that a business process cannot be
patented. So what exactly is the EU proposing to make patentable? Ideas? And
what does it have to do with software?[ Reply to This | # ]
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| Authored by: micheal on Monday, March 14 2005 @ 09:05 PM EST |
| Here is a link to an article in the Boston Globe today (Mar 14, 2005)
For entrepreneurs,paranoia might be wise
It is
about the problem of discussing a business idea with a venture capitalist who
then discloses your idea to other businesses who then may use your idea without
your permission. One solution, according to the article, is to patent your
idea.
Initially, I thought the article was just using flawed logic (i,e, if
a venture capitalist won't sign a NDA then why wouldn't the venture capitalist
require assignmnet of your patent to even talk to you?).
Now, after reading
PJ's article, I think the article is just FUD to help promote support for
patents on methods, ideas, and software.
And, the journalist may not even
realize that it is FUD.
---
LeRoy -
What a wonderful day. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 09:35 PM EST |
First I would like to say I appreciate the civility with which this contentious
issued is addressed by Ms. Bowles and Groklaw.
I must take issue with one of Ms. Bowles assertions, that the passage of thise
proposed legislation would not change the status quo. This is not a fact but an
assessment with a significant uncertainty attached to it. It may even be an
accurate assessment for some cases advocated by skilled counsel with ample
resources.
I propose a different assessment. One that offers us hope and one with which
large corporations are so uncomfortable that they are willing to resort to
applying extreme political pressure. Status quo software patents face a
significant prospect of being overturned. They face significant barriers to
succesful prosecution.
Arguments like "It doesn't matter" while vested intrests are so
adamant is a tactic well suited to avoiding, delaying and otherwise minimizing
scrutiny.
What is our best response? PJ has worked wonders defeating FUD. How do we best
deal with empty assurances? Do we pick this letter apart point by point? Do we
offer a counter proposal? Do we initiate a PR campaign of our own? How do we
warn of the dangers involved without sounding like misguided zealot? [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 09:41 PM EST |
| As a technical type of person this style of writing drives me insane. It is
smooth and extremely polished and obviously written by a highly literate and
intelligent person, yet it is very short on substance. What substance there is,
is presented so lightly and is so heavily smothered in a thick sauce of erudite
presentation, that you pretty much end up swallowing it without precisely
knowing what it is you have just eaten. Is this chicken or is it pork? It is
hard to tell.
From what I can see however the claims are as
follows.
Claim 1:
Technology is becoming more and
more implemented through programming rather than through circuitry. Hence there
is a need to extend patents to cover computer implemented
inventions.
Why is there such a need? She doesn't say.
She believes it is sufficient that companies that once were able to patent their
every design change now find that they cannot; that this by itself requires the
law to be amended. Yet this does not follow.
Patent law has not been
working well in many areas; there are numerous examples; consequently it cannot
be taken for granted that this loss of recourse to patent protection is a bad
thing. If evolving technology is forcing some industries to emerge from under
the patent umbrella, then this may in fact be a very good healthy thing. She
provides no evidence that there is a serious problem which must be
corrected.
She believes that the requirement for a technical effect is
sufficient. Just because the software is in a cellphone or in a calculator or in
an industrial robot doesn't make it stop being software. The software that
drives all those devices is protected by copyright and any innovation that
drives it is protectable as trade secrets. So why the need for patent protection
as well?
This is not just a nitpicky point on my part. This is the entire
(only) justification that she really provides for the whole move towards
patenting computer implemented inventions, and if you look at it, it is a very
weak justification. She slid it past us so smoothly that we didn't even think to
object. And from then on she talked almost purely about procedure and
process.
Claim 2:
For procedural reasons, the
process has neccessarily followed its current course. Things have happened
because once set in motion the process must move to its inevitable conclusion.
I'm sorry, but if this process has followed 'normal
procedure' then I'm a monkeys uncle. Frankly I don't care much about the
procedures and conventions of the European parliament, especially when they
start getting in the way of common sense. I will not accept for purely
procedural reasons that an extremely bad directive like this one should be
allowed to pass unchallenged.
Strangely the stage of the process where
challenge is possible never seems to be the one we are currently at. Then when
the European parliament does modify the directive, presumably at an appropriate
stage of the process, the next argument argument comes into
play.
Claim 3:
For "technical reasons", the
amendments included by the European parliament were not feasible.
So what were those technical reasons? She does not
explain. Nor was any explanation given to the European parliament whose
amendments they were. The message is clear, albeit unspoken. "There are reasons;
you don't understand; are not smart enough to understand; hence we won't explain
it to you". "Let those who understand these things (your betters) handle it".
I don't believe it for a minute, but even if you accept her argument that
the wording used by the European parliament created "technical problems" (which
is possible), the appropriate response would have been to reword the amendments
to remove just those technical problems. Instead the amendments were simply
dropped; For `procedural reasons' I'm sure.
I'm sorry, but I don't believe
her explanation. Those of us who were not born yesterday can quite clearly see
see the hand moving in the glove. [ Reply to This | # ]
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| Authored by: Anonymous on Monday, March 14 2005 @ 10:59 PM EST |
One example she mentions is very interesting. The case of "packet
switching algorithms."
These algorithms can be used to route voice communications. And these
algorithms can be implemented as circuits or software, so arguably they should
be patentable.
But those same algorithms can, and probably will, be used to route pure data.
(After all, voice is just a special case of data communications.)
And those algorithms might well be part of an operating system kernel.
So I'm not sure how you go about patenting anything involving "the real
world" and not getting into software. ("Your Linux kernel is patent
free, as long as you don't carry VoIP traffic on the network cards...")
And as for "carving out an exception for FOSS", it just won't happen.
After all, a competitor would just release an FOSS implementation of the patent.
Then they could use it, running as a stand-alone application, without even
putting the rest of their own software under the GPL. (Say that data routing
algorithm discussed above..) And if it were under an even less restrictive
license than the GPL, it would be completely meaningless. You might as well
just get rid of the patent system for any invention that can be described as
FOSS software.
[ Reply to This | # ]
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| Authored by: Ben Hildred on Tuesday, March 15 2005 @ 12:35 AM EST |
Patents slow change.
Change is scary.
---
It's not chicken soup for the soul; it's more like peanut butter for the mind.
-- The Famous Brett Watson[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 12:49 AM EST |
What I love about computers is that anyone can do it. It only costs $300 to buy
a laptop and install Linux on it and then you the most advanced programming
tools available. If you start to say, "You can't program that unless you
have a lawyer" that is a very sad thing.
The truth is that software is very easy to write. He doesn't even claim that it
is too dificult so it should be protected.
His example was, "This network stuff used to be done in hardware but now
the generic hardware is so fast we can do it in software so we need to patent
it." IE. since they were protected before they should stay protected.
That's not right. Time flows on. They should have to write new software to
stay in business.
It's sad if we kill software to save old businesses. Most people don't
understand this.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 01:27 AM EST |
I find it intresting what TRIPS actuall says.
(see note at end that I am not
a laywer).
I found TRIPS referenced
here.
What it says is intresting but I can not say I understant part
yet. Namely Article 2.
I'll post more as I learn more I hope before the 17th
of may. I wanted to post something to night then go to bed. It is late here.
Sorry for any typo. spelling ect that I leave or bad errors in jugement because
I it is late and tired and I want to go to sleep.
Article 2 Makes
reference to:
1. In respect of Parts II, III and IV of this Agreement,
Members shall comply with Articles 1 through 12, and Article 19, of the Paris
Convention (1967).
2. Nothing in Parts I to IV of this Agreement shall
derogate from existing obligations that Members may have to each other under the
Paris Convention, the Berne Convention, the Rome Convention and the Treaty on
Intellectual Property in Respect of Integrated Circuits.
Note:
below I am quoting the intresting parts but to get a feeling for the whole you
really have to read the whole. Sorry but I think that is the way it
is.
Articles 3-5 are intresting for background.
Here is the
intresting parts
(in order of appearence)
Bolding is mine not in the
original
Article 8 Principles
1. ...
2. Appropriate
measures, provided that they are consistent with the provisions of this
Agreement, may be needed to prevent the abuse of intellectual property rights by
right holders or the resort to practices which unreasonably restrain trade
or adversely affect the international transfer of technology.
Article
9
Relation to the Berne Convention
1. Members shall comply with
Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.
However, Members shall not have rights or obligations under this Agreement in
respect of the rights conferred under Article 6bis of that Convention or of the
rights derived therefrom.
2. Copyright protection shall extend to
expressions and not to ideas, procedures, methods of operation or mathematical
concepts as such.
Article 10
Computer Programs and
Compilations of Data
1. Computer programs, whether in source or object
code, shall be protected as literary works under the Berne Convention
(1971).
2. Compilations of data or other material, whether in
machine readable or other form, which by reason of the selection or arrangement
of their contents constitute intellectual creations shall be protected as such.
Such protection, which shall not extend to the data or material itself, shall be
without prejudice to any copyright subsisting in the data or material
itself.
SECTION 5: PATENTS Back to top
Article 27
Patentable
Subject Matter
1.
Subject to the provisions of paragraphs 2 and 3,
patents shall be available for any inventions, whether products or processes, in
all fields of technology, provided that they are new, involve an inventive step
and are capable of industrial application. (5) Subject to paragraph 4 of
Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents
shall be available and patent rights enjoyable without discrimination as to the
place of invention, the field of technology and whether products are imported or
locally produced.
2. Members may exclude from patentability
inventions, the prevention within their territory of the commercial exploitation
of which is necessary to protect ordre public or morality, including to
protect human, animal or plant life or health or to avoid serious prejudice to
the environment, provided that such exclusion is not made merely because the
exploitation is prohibited by their law.
Article 29 -- is usefull but
to keep this short I leave it out
Article 30
Exceptions to Rights
Conferred
Members may provide limited exceptions to the
exclusive rights conferred by a patent, provided that such exceptions do not
unreasonably conflict with a normal exploitation of the patent and do not
unreasonably prejudice the legitimate interests of the patent owner, taking
account of the legitimate interests of third parties.
Article
34
Process Patents: Burden of Proof
1. For the purposes of civil
proceedings in respect of the infringement of the rights of the owner referred
to in paragraph 1(b) of Article 28, if the subject matter of a patent is a
process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an
identical product is different from the patented process. Therefore, Members
shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:
(a) if the product obtained by the patented
process is new;
(b) if there is a substantial likelihood
that the identical product was made by the process and the owner of the patent
has been unable through reasonable efforts to determine the process actually
used.
2. Any Member shall be free to provide that the burden of
proof indicated in paragraph 1 shall be on the alleged infringer only if the
condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.
3. In the adduction of
proof to the contrary, the legitimate interests of defendants in protecting
their manufacturing and business secrets shall be taken into account.
SECTION 7: PROTECTION OF UNDISCLOSED INFORMATION Back to top
Article
39
1. In the course of ensuring effective protection against unfair
competition as provided in Article 10bis of the Paris Convention (1967), Members
shall protect undisclosed information in accordance with paragraph 2 and data
submitted to governments or governmental agencies in accordance with paragraph
3.
2. Natural and legal persons shall have the possibility of preventing
information lawfully within their control from being disclosed to, acquired by,
or used by others without their consent in a manner contrary to honest
commercial practices (10) so long as such information:
(a) is secret in the
sense that it is not, as a body or in the precise configuration and assembly of
its components, generally known among or readily accessible to persons within
the circles that normally deal with the kind of information in
question;
(b) has commercial value because it is secret;
and
(c) ...
...
SECTION 8: CONTROL OF
ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES Back to top
Article
40
1. Members agree that some licensing practices or conditions
pertaining to intellectual property rights which restrain competition may have
adverse effects on trade and may impede the transfer and dissemination of
technology.
2. Nothing in this Agreement shall prevent Members
from specifying in their legislation licensing practices or conditions that may
in particular cases constitute an abuse of intellectual property rights having
an adverse effect on competition in the relevant market. As provided above,
a Member may adopt, consistently with the other provisions of this Agreement,
appropriate measures to prevent or control such practices, which may include for
example exclusive grantback conditions, conditions preventing challenges to
validity and coercive package licensing, in the light of the relevant laws and
regulations of that Member.
3. ...
SECTION 1: GENERAL
OBLIGATIONS Back to top
Article 41
1. Members shall ensure
that enforcement procedures as specified in this Part are available under their
law so as to permit effective action against any act of infringement of
intellectual property rights covered by this Agreement, including expeditious
remedies to prevent infringements and remedies which constitute a deterrent to
further infringements. These procedures shall be applied in such a manner as
to avoid the creation of barriers to legitimate trade and to provide for
safeguards against their abuse.
2. Procedures concerning the
enforcement of intellectual property rights shall be fair and equitable. They
shall not be unnecessarily complicated or costly, or entail unreasonable
time-limits or unwarranted delays.
3. Decisions on the merits
of a case shall preferably be in writing and reasoned. They shall be made
available at least to the parties to the proceeding without undue delay.
Decisions on the merits of a case shall be based only on evidence in respect of
which parties were offered the opportunity to be heard.
4. ...
Article 42
Fair and Equitable Procedures
Members shall
make available to right holders (11) civil judicial procedures concerning the
enforcement of any intellectual property right covered by this Agreement.
Defendants shall have the right to written notice which is timely and
contains sufficient detail, including the basis of the claims. Parties shall
be allowed to be represented by independent legal counsel, and procedures shall
not impose overly burdensome requirements concerning mandatory personal
appearances. All parties to such procedures shall be duly entitled to
substantiate their claims and to present all relevant evidence. The procedure
shall provide a means to identify and protect confidential information, unless
this would be contrary to existing constitutional requirements.
Article 48
Indemnification of the Defendant
1. The
judicial authorities shall have the authority to order a party at whose request
measures were taken and who has abused enforcement procedures to provide to a
party wrongfully enjoined or restrained adequate compensation for the injury
suffered because of such abuse. The judicial authorities shall also have the
authority to order the applicant to pay the defendant expenses, which may
include appropriate attorney's fees.
2. In respect of the
administration of any law pertaining to the protection or enforcement of
intellectual property rights, Members shall only exempt both public authorities
and officials from liability to appropriate remedial measures where actions are
taken or intended in good faith in the course of the administration of that
law.
I am not sure yet but I think this may argue for limits on
some of the problems of software patents and may restrict thier use see Article
8,10 above
Note I am not a lawyer. But I hope the law can be understood by
a layperson if they just make the effort to read an understant it. (It is a very
sad state to be in if no one but the lawyers can understant the rules. As
everyone else will have to ask what does this mean each time a question comes up
and hire an lawyer ask the question get an answers. I think the system fall
under such a situation. If you disagree get an opionion for a lawyer. Anyway I
am not a lawyer and so please read carefully what I say and check it out if it
is importaint to you).
a florida resident.
I am sorry for
spelling errors. and any place where what I quote does not make since. I am
getting tired and need my sleep. I hope use will excuse my errors, and I hope
you found this intresting. I know I did. again. I want to post more latter.
(hopefully before the 17th).
[ Reply to This | # ]
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| Authored by: wjaguar on Tuesday, March 15 2005 @ 02:36 AM EST |
The worst property of all patents is that, from the perspective of a patent
lawyer, the only possible source of income is to uphold a patent against someone
"infringing" - and it just doesn't matter if said infringement is real
or imagined. Thus for a corporation that can afford patent registration and
litigation, patents are a win-win proposition - they can possibly gain big, and
even in the worst (for them) case they lose nothing but some "patent"
which was never worth the paper it was printed on anyway.
One way to remedy this situation would be to allow one who can prove that a
patent is frivolous to sue the holder of said patent for a substantial amount of
money; in this way, there would be a constructive occupation for patent lawyers
and a very powerful deterrent for the likes of M*******t against patenting
everyone else's work.
[ Reply to This | # ]
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| Authored by: sourinux on Tuesday, March 15 2005 @ 04:28 AM EST |
Hi folks,
I've developped a formal language for describing patents.
I've built a machine (turing machine, hehehe !) that takes an invention written
in this (very easy to learn) formal language and that can automatically write
the corresponding patent application and submit it to the Patent Office.
Thanks to this invention, I'll be able to file a lot of patents at minimum
risks.
Of course, I will soon file a patent for this invention.
Do you think the EPO will accept this patent ?
Thanks for your answers,
Patently yours,
Dr Turing[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 04:36 AM EST |
"Those working in the legal field are trained to listen to every detail
when the other side speaks, not to be convinced, but to note the strengths and
weaknesses of each side's arguments, so as to answer and strategize effectively.
It's how I approach any conflict."
So, be honest, what are the weaknesses in the arguments from the anti-patent
crowd?
We need to find those weaknesses in our own arguments so we can strategize
effectively.[ Reply to This | # ]
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| Authored by: muswell100 on Tuesday, March 15 2005 @ 04:42 AM EST |
If I read what is being proposed correctly, what is essentially being said is
that computer algorithms are not patentable, but 'methods' used within devices
which perform physical processes will be. Routers, for instance, are cited as
one such example.
Fine. So what if you decide you want to build a PC to act as a router between
two networks? Supposing the method behind a device which, say, measures
temperature changes in ovens is patented? How does this affect my ability to
write a program for a PC which can control my home's thermostat if I feel so
inclined?
It is right that the boundary between software and the physical world has become
blurred. However, taking the above example, thermometers are physical devices -
software which can regulate temperature isn't. If we travel down the dubious
path of putting a value on pure thought, regardless of the circumstances, we
will be making a huge long-term mistake which will cost us all dearly.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 05:19 AM EST |
| Do you think it is reasonable with legislation that makes it impossible to know
if you're breaking the law or not, while you're doing your daily work? Please
come up with a way that I can check if a program infringes on a patent or not,
with a resonable amount of work.
The only way I can think of is: Concatenate
all claims in all patents in the patent office's database to an enormous list,
and then go through them one by one and check if there is any part in your
program (which typically contains 100,000 to several million lines of code) that
could possibly infringe on this claim.
Nobody has ever done this since it
would take millions of man-years and require people with both legal and
programming skills (do such people exist at all?)
If you answer something
like "list all methods and ideas used in your program and give that to your
lawyers so they
can cross-check it against the legal database", then you don't
understand programming. You can perhaps state an idea and see if the program
uses it or not, but you can't enumerate the ideas from the program since the
possibilities are infinite. One idea can typically be interpreted both as a
development of a nearly infinite number of more basic ideas, and as a special
instance of a more abstract idea.
The problem with software patents is that
they are used not to protect inventions, but as a device for retroactively and
proactively claiming ownership to other people's independent creations.
Here
is a trivial method from one of my programs. I challenge you to come up with a
way for me to check if this method is infringing on somebody's patent or not,
with less than one man-hour of work:
private void
reschedule(TaskEvent event) {
/* If the chain is empty...
*/
if (first == null) {
/* ...insert
the object as the first link. */
first =
event;
event.next = null;
} else
{
/* Otherwise, we have to find the right position.
*/
TaskEvent after; /* The event that expires
next after the 'event' parameter. */
TaskEvent
before = null; /* The event that expires next before the 'event' parameter.
*/
for (after = first; after != null; after =
after.next)
{
/*
Loop through the chain until we find the right "after" object.
*/
if (after.expires >=
event.expires)
break;
before =
after;
}
/* If
there was no event before the parameter, it will become the first event.
*/
if (before ==
null)
first =
event;
else
before.next = event; /* otherwise, link it to the one
before. */
/* If there was no event after this
one, 'after' will be null. */
event.next =
after;
}
}
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| Authored by: KontinMonet on Tuesday, March 15 2005 @ 06:23 AM EST |
Bowles writes: It is not quite clear why there is such a belief that it is
intended to lead Europe down the US path because that battle, (such as it was)
was won a long time ago and the proposed legislation both makes it clear that
Europe does not intend to do the same as the US and provides a defence against
further attempts to force it that way.
She writes a lot of this sort
of unsubstantiated assertion. The EPO bases its restrictions on weasel wording
such as 'computer program as such' and on 'technical
effects/contributions'.
A program as such means that you don't
have to treat whatever is being submitted as 'pure' code. So anything here
goes. A 'technical effect' can mean something as simple as clearing a screen.
So anything there goes. Combine the two and you sneak business methods through.
Job done, US here we come![ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 06:30 AM EST |
We see this already: IBM have a patent on a technique called
"Read-Copy-Update", which is used in the Linux kernel. The patent is
licensed at no fee to everyone for use by GPL'd software.
Red Hat have a patent or two as well. Again, licensed at no fee to everyone for
use by GPL'd software.
These forbid implementations of the same technique using other licenses. That
is not so good. (E.g. I was using the RCU technique 17 years ago in my
home-brew OS, when I was a tiny person, of course I had no idea it was patented
or patentable).
But they do allow the proliferation of code using *one* open source license (the
GPL), freely in the sense of not requiring every user to be tracked and every
user can modify the code and publish their modifications.
That kind of license arrangement would prevent M*******t absorbing the technique
into S*L S****r. Then again, if Microsoft wanted to do that they'd do it
anyway, and if the smaller company tried to sue Microsoft, Microsoft would
simply counter-sue because the smaller company's code would _certainly_ infringe
on some patent or other under the control of Microsoft or their friends.
[ Reply to This | # ]
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| Authored by: jazzyjoe on Tuesday, March 15 2005 @ 06:33 AM EST |
This all sounds very plausible. Miss Bowles succeeded in making her points
clear.
I'm sure the patent system in the USA started out with about the same good
intentions. Patents were being filed, the patent office checked them thoroughly,
granted a few, rejected the rest. As the number of patents grew, the office had
an increasingly hard time maintaining this good job. Until they noticed it was
easier to just grant everything that sounded difficult, and let the patent
holders and alleged infringers sort it out in court. The enormous job of
checking each patent had moved from the patent office to the court room. This
process created a new barrier called "cost of litigation", which
proved to high to take for some. This provided protected for a lot of patents,
even those that didn't deserve it.
What I want to ask Miss Bowles is:
Who will protect us from EU patents going the same way?
Who will continue to provide increased funding for the EU patent offices, so
they can continue to do the job required?
Should in the end, we find that we started something we can't control, who will
take the blame?
Just my 2c.
[ Reply to This | # ]
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| Authored by: KontinMonet on Tuesday, March 15 2005 @ 06:34 AM EST |
Bowles writes: a computer program listing might be given as an example of how
to perform part or all of an invention...
It's interesting that she
says this. I believe it is used but is not a popular method. If, for example,
you merely post a C program, do errors in the code constitute a patent that can
be challenged? What compiler is being used? What O/S if it's a business
method? Different behaviours can occur using the same code on different JVMs
and the like.
To avoid these problems, perhaps she might like to suggest
using a pseudo-code listing with a well-formed grammar also listed? In any
case, no program can be shown to be strictly provably correct, so does this show
a fundamental problem with patenting software using listings? Do we, yet again,
leave it up to the courts to decide?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 07:01 AM EST |
Last month, Alastair Campbell (Press secretary and confident to Tony Blair until
he resigned partly from the fallout from the phony WMD claim business) and his
partner Fiona Millar (advisor to Cherie Blair) appeared on a charity-oriented
edition of the UK TV program 'Who wants to be a millionaire'.
The pair amply illustrated the saying "It is better to stay quiet and be
thought a fool, than to open your mouth and confirm it".
After displaying a poor knowledge of popular culture, the question that lost
their chosen charity £15K ($30K) wasm "Which country launched the Skylab
space station in 1973?". Four options: Britain, France, USSR or USA. They
thought most likely Britain but 'phoned a friend' who suggested France. Still
unsure, they went 50/50 and expressed surprise when Britain and Russia were
eliminated. Given the tough choice between France and USA - au revoir Alastair
and Fiona.
Perhaps "No one ever went broke underestimating the intelligence of (the
American) people", especially politicians and lawyers, but this brazen
public display of ignorance and lack of problem solving ability surprised me.
Even more so that their chosen 'friend' was equally ignorant - indicative of a
whole sub-culture.
With Software Patents, unfortunately we are up against these people who lack the
slightest conception about technology and science or its affect on our lives and
its role in our societies. They have no clue about how software developers work,
what we do, what the effects of our developments have. Zero. Zilch.
On the general software patent principle, one of the most useful analogies for
this audience I think is with the written word, the novel and so forth (this
angle has already been mentioned here). Although this is not helped by the
position taken by Stallman and others who tend to argue against what some of us
regard as strong similarities to maintain their more absolutist stance on 'Free
software'. Perhaps this can help get though to the technically and scientific
illiterati who hold sway in these times.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 08:17 AM EST |
| Dear Mr. Huhne,
I am a mathematician and a parent. I wish to have an
unenumbered right to practise my trade and to teach my children; as has existed
for previous generations of mathematicians and parents. Further, I wish to have
an unencumbered right to disseminate my teachings to any who will listen; and I
wish anyone who listens to be able to use freely anything they learn.
Some of
what I write and teach are sequences of instructions, which are fed to computers
and used as computer programs. Some of these computers are networked together; a
notable example is the radiotelescope now under construction in Holland. These
machines do all kinds of things as a consequence of the instructions they have
and their interconnectedness around the world. Who knows what will be attempted
in the future ?
As well as teaching, I hope to learn from other like-minded
people. Such is the way of scientific and educational progress; it has been so
for many centuries.
The laws you are proposing to enact are intimidating to
people like me. In other countries, which already have laws similar to these,
court proceedings have occured and 'remedies' such as payments of 82 million
dollars, and destruction of CDs, have occurred. Many benefits could have flowed
from the productive use of that 82 million dollars and productive deployment of
thuse CDs; instead they were confiscated by judicial action and no benefits
flowed. I do not wish to cause anyone the risk of these judgements if they
choose to learn from my teachings; not my children, not my employer, not my
employer's clients, and not any other person or corporation.
I consider that
altering the traditional patent law in the way you propose is unwise. But as a
citizen of the United Kingdom, I also understand the need to comply with the
laws that we choose to live by. So, in that spirit, if you must make this
change, please consider creating a strong defence to a legal action, to protect
those such as me and those I teach. I do not wish to spend my time in court, nor
to spend my money on legal advice; I do not have large resources of time or
money to use for that purpose; a law that could require me to waste my limited
resources that way would enable some to intimidate me by threat of use of that
law; and may cause me to stop teaching my mathematical skills both as a
professional and as a parent.
Currently the strong defence is embodied in
the guidance that "A computer program is not a patentable invention";
accordingly if I show that my work is a computer program, I can rely on freedom
from patent encumbrances. I can rest assured that if anyone takes me to court
over the matter, the judge will rapidly conclude that the action is frivolous,
and that I will be compensated for the time and money wasted.
I trust that
you will present a similar clause, to protect the interests of teaching and
progress in mathematics and the sciences, whoever does the teaching and for
whatever purpose the teaching is done.
Further, I trust that when you have a
law to propose, you will publish it openly and allow for public debate by all
interested parties, and you will allow the law to be decided on by the
democratic principle of 'one-person-one-vote' of the citrizenry of the European
Union.
Yours sincerely,
etc. [ Reply to This | # ]
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| Authored by: clark_kent on Tuesday, March 15 2005 @ 09:11 AM EST |
I don't think patents apply the same way in software as they do with physical
tangible objects, for one simple reason. Computer languages in the U.S. are
regarded as such, and languages as well as speech and expressions using such are
protected by the First Amendment. This is VERY key. Physical products are not
looked at things in that way. There is no "language" that
"creates" the physical products. Only processes and thoughts. Software
is essentially created by "language."
Now what if OpenOffice puts out a way of handling XML that Microsoft has a
patent on. I am sure Microsoft would have already stopped the american effort if
they could. They probably do have a patent on XML handling in Word, in the U.S.
That hasn't stopped OpenOffice from developing it and offering it for free.
That hasn't stopped Linux Distributors from distributing it. That hasn't stopped
Wordperfect. That hasn't stopped the Koffice or AbiWord. So, in the US, let
Microsoft have the patent. Microsoft still can't go after these companies or
private developer networks. They haven't infringed on the patent.
Now this might be the sticking point in the EU. The U.S. has the first amendment
"Freedom of Speech" which covers compauter languages and expressions,
which might hinder the full interpretation of patent law that Microsoft wishes
it could in the U.S., because that interpretation could be ruled
unconsitutional.
What I think is happening in the EU is that there needs to be two extreme sides
for Microsoft to suceed. The deal is, they and a bunch of others may be
distracting both sides, to avoid the issue of a protected "speech" or
"language" provision in the EU that would protect freedom of
expression in the EU as it does now in the US. The first amendment in the US has
been proven to be VERY powerful. I think we should consider that there will be
patents in the EU, eventually. But the EU needs time to do research. And if that
is not possible due to the conditions set forth by the EC, then negotiations of
both extremists sides must begin at a wild-fire pace.
I believe what is happening now is Microsoft is trying to create enough
confusion to say that what "works" (and I use that term very loosely)
in the U.S. should provide the same protection in the E.U. But because both the
U.S and the E.U. have different (overall) approaches to political methods and
means, patent law most likely will be interpreted differently as well. Maybe
software patents "work" in the U.S. because of the U.S. first
amendment protecting computer language as a speech or language expression and
how our Justice system look at our Consitution. I can see it working differently
elsewhere.[ Reply to This | # ]
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| Authored by: David Tomlinson on Tuesday, March 15 2005 @ 11:34 AM EST |
I will be attending a technical contribution workshop.
This letter is both an admission of defeat and an attempt at blackmail!
If we don't give them what they want, we will have it imposed upon us through
TRIPS and the WTO.
See the Paragraph refering to TRIPS
"More recently, some European countries ..."
If we are rejecting the EPO's logic (and we should), then the same applies to
TRIPS. And as Article 52 is unambigious, that is a common position which should
be defended at the WTO.
See:
http://www.cippm.org.uk/pdfs/JILT%20kretschmer%2011_03.pdf
Software as Text and the Legal Capture of Digital Innovation.
The issue is black and white. "No Software Patents."
Groklaw covered 'Trading Technology's' UK patent, the EPO status quo is both
illegal and unacceptable.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 01:57 PM EST |
<blockquote>An algorithm is inherently non-technical and therefore cannot
constitute a technical invention. Nonetheless, a method involving the use of an
algorithm might be patentable provided that the method is used to solve a
technical problem. However, any patent granted for such a method would not
monopolise the algorithm itself or its use in contexts not foreseen in the
patent.</blockquote>
What I want to know is, how is a method not an algorithm?
Definition of algorithm - A procedure or formula for solving a problem.
Definition of method - a way of doing something, especially a systematic way;
implies an orderly logical arrangement (usually in steps)
Beside the simple fact that every computer program is, by nature, an algorithm,
and cannot be patented, I want to know exactly why a method, which seems to be
exactly the same as an algorithm, is somehow patentable. It doesn't make
sense.
You can't patent an algorithm, but you can patent a method, which is an
algorithm. It doesn't make sense.
Chewbacca is a wookie, yet he lives on Endor. It doesn't make sense.
Why? WHY?!? *head explodes*
Paul C.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 04:17 PM EST |
Under a patent regime, it plays out like this:
-- Company X obtains patent, releases software
-- Microsoft bundles the ideas into a product, releases it months later
-- Company X sues Microsoft for patent infringement
-- Microsoft countersues on the grounds that company X's software infringes some
of Microsoft's thousands of patents (many trivial, some not).
-- Company X settles. Since they infringe a lot more of Microsoft's patents than
Microsoft infringes of theirs, they'll get to use each others patents but
company X will be lucky to get away without paying Microsoft ongoing royalties.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, March 15 2005 @ 06:03 PM EST |
| If I understand it right, there might be a patent on an anti-lock braking system
for a car which is controlled by software in a computer.
But if I write a
car-driving simulation game for a computer, with a physically-realistic
anti-lock braking system using the algorithm disclosed in the patent; even using
the same code as disclosed in the patent (in the US, a patent disclosure would
be the property of the government, thereby not subject to copyright ?) then this
would be 'normal interaction of computer and program' and thereby not patentable
?
So what's patented ? Presumably the process of stopping the car efficiently
and safely, when it embodies using a computer to do what a human couldn't do
(becuase of inability to react quickly enough, and/or inability to have the
sensors that the computer has).
Or, might the video game be encumbered ? [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, March 16 2005 @ 12:55 PM EST |
It's time to begin a movement to allow the patenting of legal tactics and
strategies. Ms. Bowles and her cohorts may then be moved to freshly consider
their plans from a new perspective.[ Reply to This | # ]
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| Authored by: logophage on Wednesday, March 16 2005 @ 07:23 PM EST |
Patents on inventions within operating systems are allowed
under the regulations of the UK patent office (that much
was admitted at the DTI meeting on the issue last
December). As the UKPO is actually less liberal than the
EPO, then this is certain to remain the case under the
new directive, only this time with full authority.
On thing which was clearly mentioned at that meeting was
that compression algorithms could be patentable (was a
comment by Steve Probert from the UKPO).
For companies with a virtual monopoly (Microsoft being but
one example), encapsulation of data (be that files or data
across the wire) by a patented compression algorithm could
be used to legally block out competitors.
This is the reason why an interoperability clause would be
so useful. It would preserve the advantage of using the
invention (as one side of any communication would involve
the patent-owner's licensed device) whilst devaluing the
value of the patent for anti-competitive purposes.
And if anyone says that that's what anti-competition law is
for, ask them what the burden of proof is regarding
establishing monopoly status of a party, when that party
is trying to obtain an preliminary injunction against your
use of their claimed invention....
My 2p anyway,
Steve[ Reply to This | # ]
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