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| Yet Another UK Patents Workshops Report - from Groklaw's Cinly |
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Tuesday, April 12 2005 @ 08:50 AM EDT
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We have another report from the UK Patents Workshops, from Groklaw member Cinly. What is interesting to me is, they used different definitions than our last reporter had to evaluate. I gather the UK Patent Office is trying out language on what constitutes a "technical contribution." Simon Best found the link where you can read all of the definitions, including the four used at Cinly's session. Matt Whipp of PC Pro attended a workshop too, and his report is here. As I was reading this report, the section on the various case studies, it came into my mind that what they should use for case studies would be the components of the Internet. Seriously. I would bet that it would all qualify for a patent, and what a different world it would be if the creators of the Internet had patented each invention. Something, in my opinion, is wrong with patents on anything we *all* have to use. If you read each case study that way, as I did, applying the current language of the software patents directive, it gives you a sinking feeling, realizing everything you can think of pretty much ends up patentable by that definition. In fact, there wasn't one case study presented at this session of the workshops that failed to be decided that way. And, of course, that is exactly the way it will play out in real life, if this awful software patents directive is passed as written. We really need a better definition of "technical contribution," one that isn't such a blank check, at a minimum. That's what I am getting out of these reports. Anybody got an idea for better language? Here's mine: software and patents should get a divorce. It was a horrible mistake for the US to allow patents on software, and the results are clearly evident: patent trolls suing over patents they don't even use for anything but the patent infringement legal lottery, a playing field only the wealthy can play in, and a discouraging effect on innovation, and it is impossible to know how to avoid infringement currently in the US, and so unbearable legal costs must be assumed, which independent developers simply are unable to do. Here's just one example of the waste, fear, and annoyance software patents cause. And here's a paper on why patents can only cripple the software industry. Software is developed so rapidly, a monopoly where everybody has to stand still for a time period (or pay) makes no sense anyway. I'm quite serious. The only beneficiaries are a handful of large corporations, who benefit by holding the rest of us back, and frankly, no offense, but they have enough money already. The public has a right to the benefits of real innovation, and that isn't something software patents encourage. And it's math. One plus one should never be patentable. Never. If you must have patents on specialty items the rest of us don't much need to have, go ahead, but define your terms so that it really is limited to such things, please, and leave knowledge in the common pool, so the public has the benefit of scientific advances. You know. Like the Internet. Nobody needed a patent to encourage that to happen. And had Microsoft and a few others invented the Internet, trust me, it'd all be licensed and balkanized, like cell phones. You know how wonderfully cell phones work. I traveled recently to another state with a cell phone that it turned out doesn't work in the entire state. Imagine a patented Internet. It would work just like that. And didn't the Internet result in economic benefits? Think larger please, everyone. There really is an economic benefit to sharing knowledge. Look at GNU/Linux. It wasn't written to make a dollar, but it has turned into a cash cow. So think larger, please, about software patents. There is money to be made from innovation, but not that way.
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For my session, there were 30 attendees (2 women, I have to stress that I am defining the gender as on one's birth certificate) and 5 UKPO staffs: The Patent Director, two patent examiners and two secretarial staffs.
The session is exactly as described by the FFII report. On arrival, we are randomly divided into 6 groups. My group is group 3 (white). Before the session starts, there is a tea session where people are probing each others' views on software patents. The most active participant is a patent attorney who seems to be more interested in getting others' opinions, while keeping his to himself. As the session starts, a person leaves an "anti-software patent" card on each table. It uses penalty kick in football (soccer) as an example. Effectively, to get software patent through -- i.e., kicking the ball into the net -- the player simply has to kick again and again, and the size of the goal month is adjustable. The session starts with the Patent Director introducing himself and his staff and giving us instructions on what to expect in the session. The session starts with a group discussion on applying four definitions of patentability to 5 case studies concentrating on one topic: technical contribution. At the same time, we are asked to evaluate which definition is the easiest to apply, after which our opinions are tabulated into a chart. Then, each group has to elect a spokeperson to talk about the discussion in general, and individuals are given a chance to voice their opinions. At the end, a volunteery straw poll is taken on three questions:
(1) In your opinion, are any of the examples in the case studies patentable, applying whichever definition of patentability one fancies of the four
(2) Is software patentable or not?
(3) At the request of one participant: To which category do we classify ourselves: techie, lawyer, both, or neither.
The answer to (2) is 10 YES and 16 NO. For (3), it is 15 techies, 1 lawyer, 4 both, and 5 neither. I noted a strong tendency for patent attorneys to classify themselves as both rather than mere lawyers. Please remember that answers are not compulsory, so that is why the number of answers do not add up to the number of attendees, for you math-oriented folks.
It is important to note that the results of my session do not in any way represent the concensus for all the workshops. From other reports, different sessions do come out with distinctively different results.
One other point from this session I thought was significant is that there are 5 persons to a group, and despite efforts to in randomize the member composition of the tables, at my session, patent attorneys are heavily concentrated at one table. On the question on patentability of software, I noted that 4 persons from that table said software should be patentable, bucking the general trend of the group as a whole.
On the sheets of papers we were given, it is mentioned that the purpose of the workshop is to see whether it is possible to find a definition that give broadly the same results as the current "technical contribution" test in European law but is clearer to apply. UKPO says that while the case studies are hypothetical inventions, they represent borderline cases. There are 5 case studies and 4 definitions, hence in total, we have 20 cases to consider. We have approximately one hour to do so, hence on average, we needed to make a decision every 3 minutes.
It is important to note that we are supposed to assume the cases are "NON OBVIOUS" and NOVEL. Our duty is to review whether the claims in each case, *as a whole*, satisfy the "technical contribution" part of each definition. It is stressed to use that we are NOT deciding whether the patent should be granted.
Each case study contains a background description of what it is, together with a "Claims" section. It is the "Claims" section we are supposed to evaluate. The claims section consists of a few short paragraphs, each paragraph is, as we read it, worded as if they are separate mini claims. We therefore seek clarification from one of the Patent Examiners whether should we invalidate the claim if any sentence or paragraph in the "claim section" fails the "technical contribution" test. The patent examiner is understandably evasive by stressing that we are supposed to evaluate the claim as a whole. I take that to mean we do not have the "line strike" ability and the group decided that from his clarification, it means we must say the claims satisfy the "technical contribution" criteria if we can find one thing in the whole claim session to satisfy this criteria.
My group (group 3, white) consists of a journalist, a trainee lawyer, a software veteran now running a small software business, a software developer, and a university researcher (me). We decided to evaluate all case studies against one definition before moving on to another definition. Our methodology was, when evaluating each definition, we first would strike out sentences that were not the purpose of the session and concentrated on the rest.
We are each given a green-coloured result sheet to note down our decisions and are encouraged to put down what we think is important on the paper. There is a separate result sheet to note down the group decision and important concensus. All these were collected by UKPO at the end of the session.
For the definitions and case studies, I used the alphabet/numbers given to it by the UKPO.
DEFINITIONS
The four definitions we were given are:
(A) The current definition used by UKPO: "'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."
As a group, our problem is that, after striking out parts that are not relevent to the workshop, we are left with no guidance at all. Given the fact that we were told the case studies are borderline cases, we have no choice but to pass every case study as satisfying the "technical contribution" test. We are so sure that our hands are tied that we did not bother reading any of the case study at all.
The session as a whole agrees that this definition does not give any guidance on what is a "technical contribution". A few pointed out that this definition concentrated on novelty rather than "technical contribution".
One participant, who says he is a non-lawyer but who has experience in filing for and being granted patents, and has successfully challenged the validity of another, opines that he likes the non-definition of "technical contribution," as it gives the court the ability to evaluate individual cases on their own merits. Jeremy, (one of the patent examiners) want to add a comment but was stopped by his boss. Later after the session, he says that he thinks this is not a good idea because it, in effect, leaves the definition to judges, and the definition will be decided on case law alone, with no clear guidelines.
(B)The FFII definition: "'Technical Contribution' means a contribution made by a claimed
invention, considered as a whole, to the state of the art in a field of
technology. 'Technical' means belonging to a field of technology.
"New teaching about the use of controllable forces of nature under the
control of a computer program, beyond the implementation of the data
processing procedure itself, is technical. The processing, handling,
representation and presentation of information by a computer program is
not technical, even where technical devices are employed for such
purposes."
The whole session finds it difficult to apply this definition. The term "controllable forces of nature" created havoc. One group argues whether "pushing electrons along circuits" constitutes forces of nature. In my group, I try but cannot persuade others who are not trained in telecommunications to agree that "dynamic allocation of bandwidth" is about "controlling forces of nature". More later in the case study.
Later, after the session, the suitability of this definition came out as we are picking the brain of a patent examiner. He says the some sessions find the definition, which consist of two sections -- the first paragraph saying what is patentable, the second saying what is not patentable -- difficult to apply. He says that this style of defining what's patentable and what's not can sometime cause unexpected difficulty.
(G) A definition that looks like a rehash of (B): "'Technical Contribution' should be applied to a putative invention
when considered in its entirety if that claimed invention is concerned
with new teaching in controlling forces of nature in a field of
technology.
"The processing, handling or presentation of information by a computer
program -- or abstract representations of programs and algorithms --
should not be considered technical, even when that processing, handling
or presentation of information is part of larger putative invention that
makes a technical contribution, and even when technical devices are used
in the processing handling and presentation of information." The first problem we have is to determine how is this different from (B). In fact, we actually spent time debating if it is different from (B). In the end, because of the way it is worded, we decided that "technical contribution" is more stringent. This view was echoed by other groups. Based on this observation, for the case studies, we reviewed only cases which satisfied (B) to see whether it still satisfied (G), since anything that fails (B) must fails (G) as well.
(K): "'Technical contribution' means a contribution made by a claimed
invention, considered as a whole, to the state of the art in and limited
to a declared field of technology.
"'Computer-implemented invention' means any invention the performance
of which involves the use of a computer, computer network or other
programmable apparatus and having one or more prima facie novel features
which are realised wholly or partly by means of a computer program or
computer programs.
"The processing, handling, and presentation of information by a
computer program is not technical, even where technical devices are
employed for such purposes.
"Implementation of a software solution on a platform or architecture
not itself supported by the claimed invention is a separate contribution
and is excluded from the claimed invention." This definition first defined "Technical contribution" as a claim that, as a whole, contributed to the state of the art in and limited to a declared field of technology. It then defined "computer-implemented invention" as anything that uses a computer or programming device and that a computer program is one of the main feature of the claim. The third paragraph contained the standard information that processing, handling and presentation of information by a computer program is not patentable. In the last paragraph, it stressed that reimplementing the software solution on a different architecture is permissible.
The last paragraph causes a lot of debate on why it is included. Most group says that, if the paragraph is struck from the definition, it is possibly the "least difficult" definition to apply.
However, at least two groups says that it is very ambiguious and open to interpretation, thus, potentially too permissive. For example, what constitutes "data" and what is "processing"?
Overall, the impression is that a common flaw of the definitions in B/G/K is that they do not define "data", "processing", "handling" and "presentation" and that we need a cast-iron definition for all the terms.
One patent attorney correctly raised the point that the definitions should not be too technology-related as this would not stnad the test of time. Another says that it is important to visit the definition of "obvious" too.
CASE STUDIES
If you wish to read the case studies, to follow along in detail, here is the page.
I think it is important to stress the difference between "technical contribution" and infringing a patent. In the UK, there are at least two sections: "technical contribution" claims and the actual implementation. Technical contribution is written in the claim to show how it is different from the state-of-the-art. But you are infringing the patent if, and only if, you are reproducing the "technical contribution" USING the claimed implementation. Hence, it means if you reproduce the technical contribution using a different implementation, you are not infringing. This is the description given by the patent examiner. After presenting the case study, I listed the majority result for each definition and the session's view on whether the invention is patentable (if one is free to write any definition of patentability). I should mention all results were calculated on a "one attendee, one vote" system rather than "one group, one vote" system. For the latter question, one can choose not to answer.
Each case study begins by giving some background information. This background information just set the scenario. We are to concentrate on the claims section.
Case study 4 is about digitally enhancing pictures taken in low light or night conditions. The claim is for a digital filter that:
creates a two-dimensional array representing the photograph, identifying an operator matrix that contains light-enhancement parameters, applying this matrix to the photograph and reproducing the same photo, this time enhanced.
As a group, we decided that the first -- "creates a 2D array representing the photograph" -- definitely fails the criteria. In the end, the question boils down to whether "applying the operator matrix to get an enhanced photo" constitutes a "technical contribution". In definitions B,G,K, the question is whether this constitutes "processing of data". I argued that the actual "composition of the operator matrix" will separate it from mere traditional "processing of data". A lot of people disagreed.
The final results:
(A) YES (All)
(B) NO
(G) NO (large majority)
(K) NO
Should it be Patentable?
11 yes
16 NO
In case study 10, the applicant developed a new operating system that is very secure and platform-independent. It is run as a virtual machine. It provides a set of standard tools. Each tool provides its own data structure and creates Graphical User Interface (GUI) elements. The applicant developed an Application Programming Interface (API) for programmers to use. The claim is for the API, specifically, a way of receiving parameters from a program, populating the data structure, and creating the GUI elements.
As a group, we have no doubt that it fails the "Controllable Forces" and the claim is simply "processing of data". Hence, we did not spend a lot of time on evaluating it against most definitions.
The final results:
(A) YES (Only one says no)
(B) NO (All)
(G) NO (All)
(K) NO (except 2)
Should it be patentable?
6 Yes
19 NO
Case study 11 involved an improved manufacturing technique, to create custom chip for a specific purpose. The applicant developed a method of using probablility analysis to determine the scheduling of the functional components for the chip and used this to determine the chip floor plan (layout). The claim is for a method of manufacturing the chip to perform a particular computation by receiving the functional specification, then identifying relationship between individual function in the functional specification, analyze the relationship, and use it to determine the chip floor plan. Finally, manufacture the chip.
The fact that there is a physical manifestation of the result, i.e., a chip is being manufactured, weighs heavily in the mind of participants in this session. We know this because the patent examiner specifically asked us whether this is the most important consideration.
The final results:
(A) Yes (ALL)
(B) Yes (large majority)
(G) Yes (large majority)
(K) Yes (large maojrity)
Should it be patentable?
17 YES
8 NO
Case study 12 was about online gaming of Backgammon. A big problem is waiting for your opponent to respond to your move. The method is for the elimination of waiting time. The claim is on reducing the time delay in playing a traditional two-player game over the internet by creating a standard interface and presenting it to both the user and his opponent. Once the user makes 5 moves, based on what the system predicts of his opponent's move will do, the result is transmitted to his opponent, where the move is either replayed to the opponent if the prediction is correct, otherwise, a new prediction is done for the opponent. This is then transmitted to the user. The process is repeated until the game is finished.
[Aside: I have problem understanding how this could work.]
We, as a group, agree it is processing-of-data.
The final results:
(A) YES (3 No)
(B) NO (1 No)
(G) NO (All)
(K) NO (All)
Is it patentable?:
YES 2
NO 24
Study 13: A way of dynamically allocating bandwidth to different base stations according to the number of users it has. The claim is for mobile telephony to dynamically allocate bandwidth to base stations according to demands and to predict adjacent base stations that might require more bandwidth. The algorithm identifies the number of phones in a cell, monitoring "hand-off" data and generates a call for more bandwith. The algorithm also stores the hand-off path of a phone, and uses it to generate a bandwidth call for an adjacent cell.
A lot of participants believe this is simply processing of data and there is no "Controllable Forces of Nature". This is motivated by the fact that bandwidth is fixed by Mother Nature and the claim is simply "reallocation of existing bandwidth", even if it is a more efficient way of using existing resources. They are right.
However, applying my knowledge as a telecommunication engineer, I know that allocating bandwidth is a very big problem. The problem is that electromagnetic spectrum is a finite commodity. Bandwidth is an allocation of a part of this spectrum to different users. This is an age-old dilemma for all regulators/engineers: How to maximize the usage of this restricted commodity. In this case, it boils down to giving as much/as little bandwidth to suit the demand of a particular base station. This illustrated to me the importance of domain-specific knowledge in evaluating technical contributions.
The final results:
(A) YES (ALL)
(B) YES
(G) NO (Majority)
(K) NO (majority).
Is it patentable?:
YES 13
NO 12
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| Authored by: fudisbad on Tuesday, April 12 2005 @ 10:01 AM EDT |
For current events, legal filings, 10-Ks and 10-Qs.
Please make links clickable.
Example: <a href="http://example.com">Click here</a>
---
See my bio for copyright details re: this post.
Darl McBride, file your 10-Q![ Reply to This | # ]
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- SCOXE - Authored by: Anonymous on Tuesday, April 12 2005 @ 01:10 PM EDT
- Slashdot: LexisNexis breach worse than believed - Authored by: Anonymous on Tuesday, April 12 2005 @ 02:06 PM EDT
- A simple question - Authored by: Anonymous on Tuesday, April 12 2005 @ 02:42 PM EDT
- OT: Big hitters join EU's battle against Microsoft - Authored by: GelW on Tuesday, April 12 2005 @ 03:24 PM EDT
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- McBride == versatile? - Authored by: Rudisaurus on Tuesday, April 12 2005 @ 04:12 PM EDT
- Tyson Announces McBride Match on June 11 - Authored by: Anonymous on Tuesday, April 12 2005 @ 04:13 PM EDT
- Reminder: Conf call Wednesday, April 13 at 5 PM EDT/10PM BST - Authored by: Saturn on Tuesday, April 12 2005 @ 04:23 PM EDT
- SCO SHARES - Authored by: Anonymous on Tuesday, April 12 2005 @ 06:40 PM EDT
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- SCO SHARES 5+%, not 25% - Authored by: jdg on Wednesday, April 13 2005 @ 01:37 AM EDT
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- Tyson to Fight McBride in June - Authored by: Anonymous on Tuesday, April 12 2005 @ 07:53 PM EDT
- An explanation of SCO's case from their filings transcribed as text - Authored by: codswallop on Wednesday, April 13 2005 @ 12:34 AM EDT
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| Authored by: fudisbad on Tuesday, April 12 2005 @ 10:03 AM EDT |
If required.
---
See my bio for copyright details re: this post.
Darl McBride, file your 10-Q![ Reply to This | # ]
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| Authored by: MplsBrian on Tuesday, April 12 2005 @ 10:46 AM EDT |
The emotional pleas for 'please no software patents' do not resonate with me. I
understand & agree with the argument that the US patent system is broken.
But I do not understand the argument that software patents are inherently wrong.
If someone creates something truly unique and innovative via software, why
should they not have the option to patent their creation? I think there are
valid arguments that information wants to be free, I agree that collaboration
& sharing are good things for everyone. But I do not agree that innovations
must be shared. I think there's a profound quote from someone somewhere about
the differences between what is given freely and what is taken forcibly.
Convince the innovators the benefits of sharing their creations, rather than
forcing them to give up their work.
[ Reply to This | # ]
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- It's very simple. - Authored by: archonix on Tuesday, April 12 2005 @ 11:02 AM EDT
- I still don't get it. - Authored by: Anonymous on Tuesday, April 12 2005 @ 12:03 PM EDT
- I still don't get it. - Authored by: PJ on Tuesday, April 12 2005 @ 12:18 PM EDT
- I still don't get it. - Authored by: Anonymous on Tuesday, April 12 2005 @ 12:34 PM EDT
- I still don't get it. - Authored by: Anonymous on Tuesday, April 12 2005 @ 12:43 PM EDT
- I still don't get it. - Authored by: micheal on Tuesday, April 12 2005 @ 12:58 PM EDT
- When patents were justified... - Authored by: tce on Tuesday, April 12 2005 @ 01:46 PM EDT
- I still don't get it. - Authored by: Kybos on Tuesday, April 12 2005 @ 02:39 PM EDT
- More reasons not to patent software - Authored by: AdamBaker on Tuesday, April 12 2005 @ 03:57 PM EDT
- Lifecycles - Authored by: lifewish on Tuesday, April 12 2005 @ 04:08 PM EDT
- because in software mfg is free - Authored by: LouS on Tuesday, April 12 2005 @ 04:44 PM EDT
- Thank you all. - Authored by: MplsBrian on Tuesday, April 12 2005 @ 05:23 PM EDT
- The End of Civilization as we Know it? - Authored by: swengr on Tuesday, April 12 2005 @ 06:39 PM EDT
- Bogus arguments - Authored by: emmenjay on Tuesday, April 12 2005 @ 07:17 PM EDT
- It's not math: it's music - Authored by: Anonymous on Tuesday, April 12 2005 @ 07:18 PM EDT
- Patents will destroy me and other independent software developers! - Authored by: Anonymous on Wednesday, April 13 2005 @ 06:09 AM EDT
- I still don't get it. - Authored by: Anonymous on Wednesday, April 13 2005 @ 07:42 AM EDT
- MplsBrian has a point - Authored by: chrism on Wednesday, April 13 2005 @ 02:54 PM EDT
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| Authored by: cinly on Tuesday, April 12 2005 @ 11:41 AM EDT |
"If you read each case study that way, as I did, applying the
current language of the software patents directive, it gives you a sinking
feeling, realizing everything you can think of pretty much ends up patentable
by that definition. In fact, there wasn't one case study presented at this
session of the workshops that failed to be decided that way. And, of course,
that is exactly the way it will play out in real life, if this awful software
patents
directive is passed as written. We really need a better definition of
"technical
contribution," one that isn't such a blank check. That's what I am
getting out
of these reports."
That's precisely what most
anti-software-patent people felt. But one of
the patent examiner says that
there are supplementary documents/guidelines
that they have to follow and that
should make it OK. My view is that they want
some leeway on what is
patentable/what is not and to make sure
everything can evolve with time: It is
much more difficult to change the law
than to change a guideline. Need an
example? George cannot marry Mrs
Simpson without giving up his crown but his
grandson Charles can marry
Camella with no problems. No law needs to be
amended. Why? The
government decided to interpret it differently! In 10 years
time may be the
queen can be a man (and what's wrong with that?)
Jeremy
(One of the patent examiner in the session) also says, post
session, that the
directive, taken as a whole, clarify the situation on what's
patentable, what's
not. That is unfortunately, not supported by the directive's
definition. May be
it is true on an implementation level and its something that
you can only
understand if you are dealing with Patents day-in-day-out as
an examiner. If
so, I think they should convince us on this count. (A side note
is necessary
here. Jeremy is a very good PR person and fluent in the use of
the English
language to drive his argument. However, I am not convinced that
software
patent is really excluded in the current directive.)
One serious
criticism of the definitions we are given is that they are too
biased towards
stopping software patent. The last definition (K) actually went
the extra mile
by specifying architecture as well! Lets not forget that the
definitions
have
to work for industrial chemical as well! Having said that, looking at the
case
studies, a lot are biased towards software.
What is clear is that there
is going to be a constant struggle, and that
UKPO is really trying its best to
be an unbiased referee. I am looking forward
to see UKPO's Point of View from
the promised report. ---
All views expressed here are my own and do not
reflect that of any institution I am affiliated to [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 12 2005 @ 11:51 AM EDT |
2 women, I have to stress that I am defining the gender as on one's birth
certificate
Why is this important?[ Reply to This | # ]
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| Authored by: chrism on Tuesday, April 12 2005 @ 12:32 PM EDT |
| Cinly's observation that:
The most active participant is a
patent attorney who seems to be more interested in getting others' opinions,
while keeping his to himself.
was very insightful and speaks
volumes about what is really going on in the "workshop". [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 12 2005 @ 01:19 PM EDT |
........dubious patents being granted under the more lackadaisical US
patent system they realise that with the best will in the world on the part of
the UK and European patent offices, there are actually no safeguards to stop the
same happening over here.
Not so, says the patent office. We are the
safeguard to prevent us from following broad approach of the US. 'We realise
that a patent is an incredibly powerful tool in the marketplace,' said Jeremy
Philpott of the UK Patent Office. 'And we don't grant them lightly.'
And so
the issue boils down to one of trust and expertise. Even with minutely
detailed legislation on patents, is it realistic to expect a software engineer
to make a legal judgement on the thousands of patents they could be infringing
or whether they have 'invented' something patentable? Likewise, is it realistic
to expect a patent attorney to be a technology expert at the same level as the
engineer?
Even among the engineers present at the workshop, there were
disputes over the patentability of some applications under examination, simply
because of their various specialisations........... PCpro
How can they say this when one only has
to look at the patents which have already been granted(in advance) by the EPO.
They have already demonstrated they are little better than their US
counterparts.
What do the UK patent office have to say about some of the more
glaring examples? Brian S. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 12 2005 @ 01:38 PM EDT |
The case study is interesting because it is plain that whoever thought it up was
interested in a prior art question.
All digital images (rasters) are two dimensional arrays. The ubiquitous filters
and enhancement routines generally employ a "window" array that
applies an operator to pixels falling within the "window". Such
filters step through the raster reapplying the filer operation to each segment.
The standard "brightness/contrast" adjustment operation is a specific
example that applies multipliers to pixels within the window. Since a CCD can
record at light levels that we can't actaully see (they are widely used in
astronomy), the process that converts CCD data to a raster image would probably
fall within the "patent", as would hundreds if not thousands of image
processing utilities, both open and closed source.
It should be considered prior art.
[ Reply to This | # ]
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| Authored by: grundy on Tuesday, April 12 2005 @ 06:54 PM EDT |
If it were that the right of the inventor was only to a
reasonable share of all profits - no more patent problem.
[ Reply to This | # ]
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| Authored by: marbux on Tuesday, April 12 2005 @ 07:23 PM EDT |
| I've been doing quite a bit of research on the software patent issue. I'll lay
out some thoughts in bullet fashion in no particular order (and yes, I realize
some are inconsistent):
- The need for and scope of any type of
patent system deserves reexamination. There is scant reason to believe that 18th
Century economic philosophers necessarily were right in presuming that patents
stimulate innovation and advance science and the useful arts.
- There has
always been difficulty in drafting criteria for patents that are flexible enough
to encompass true innovations while inflexible enough to eliminate all other
inventions. Software is not unique in that respect.
- Software inventions
as a class bring into focus that difficulty because of the rapid pace of growth
in the software industry and because virtually every software creation is a
combination of innovation and prior art.
- The best argument against
software patents just might be that it is impossible to draft relevant
definitions for deciding what is and is not patentable. That leaves three
choices: (i) patent every software creation; (ii) patent no software creations;
or (iii) trust what is inherently an arbitrary exercise of government power to
bestow economic monopolies.
- In public debate, those who argue that the
existing system is salvageable should shoulder the burden of making specific
patent law language proposals rather than simply arguing that the system has
been abused. This is a serious problem that will not be solved by rhetoric.
(Note that here I violate the very principle I espouse.)
- To the extent
there is a patent system, whether a given patent monopoly is necessary to
stimulate advancement of science and the useful arts should be a threshold
inquiry. The very purpose of patents has been lost in minutiae of the system's
implementation.
- Would the invention have been developed absent the
incentive of a patent? If so, is the purpose of granting a patent still somehow
fulfilled?
- Can the inventor/assignee profit without a patent monopoly?
Why then is any additional incentive necessary?
- Does the patent
application have a purpose other than protecting an existing monopoly from
competition? If not, then the patent should be denied. (Think of patents
blocking software interoperability here.)
- Patents that have the
effect of blocking software interoperability are indefensible on any valid
economic grounds. Virtually any debate with that statement is political, not
technological, and depends on misrepresentation of facts.
- The UK
Patent Office assortment of draft legal standards needs to be tested against
cases such as Microsoft's Dot-Net, XML Schemas, and Windows communication
protocol patents.
- A right to inverse engineer software interoperability
interfaces is insufficient and a waste of human and economic resources. If we
are going to build an Information Society infrastructure that is available to
all, interoperability code must become open source and free of all intellectual
property claims.
- Within the context of the Information Society
infrastructure, software substitutibility is what creates
competitive software markets, and unimpeded software interoperability is
therefore fundamental to creation of that infrastructure. The only exceptions
should be very narrowly drawn to address factors such as the necessity of
protecting encrypted and non-public data.
- The essentially ad hoc
nature of individual patent grants is poorly designed to allocate
responsibilities for construction and maintenance of portions of the Information
Society Infrastructure ("ISI"). At the very least, an ISI impact study
("ISIIS"), akin to an environmental impact study ("EIS"), should be a part of
the patent approval/disapproval process and taken into account in the final
decision. Any person should have standing to challenge the adequacy of an ISIIS,
and suitable incentives should be provided to mount such challenges, such as
liberal attorney fee awards for prevailing plaintiffs. The patent office should
be the defendant, not the recipient of a patent. (Indeed, an EIS challenge to
the issuance of particular patents is long overdue and might be prosecuted under
existing law.) The enduring U.S. Na
tional Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. could
provide a conceptual model for such legislation; see also Presi
dent's Council on Environmental Quality Regulations for Implementation of
NEPA, 40 C.F.R. 1500-1508.
I'm coming more and more to believe
that it is a mistake to extend the 18th Century concept of patent monopolies to
software. It's simply taking too much warping of concepts to make it fit. It
might be far more productive to exclude software entirely from the legal
architecture of patentability and copyright, starting with a clean slate to
define a new set of rights more closely fitting the societal goals of software
development, both economic and social. A "softright," if you will.
It would
be an interesting Groklaw exercise to have a group discussion of what a
"softright" might entail, ignoring existing patent and copyright law.
By the
way, I've discovered another Geek/Groklaw bug. The HTML 4.01 Transitional
ordered list type identifier doesn't work, producing a type "1" regardless of
what type is specified.
---
Retired lawyer [ Reply to This | # ]
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| Authored by: sjgibbs on Tuesday, April 12 2005 @ 08:09 PM EDT |
I'm not sure whether this topic has been covered, and its late so I'm not
going to check, but please accept my apologies for duplicating if indeed I
have.
OK. Well, I saw this paragraph from the transcript
of the Q&A with Lord Sainsbury (who strikes me as a little naiive on the
wording issue I think), and it got me thinking about whether playing with the
definition is the right approach.
Questioner: I've got a
couple of specific examples. The question I wanted to ask specifically was about
technical contribution, because it seems in the past that technical contribution
hasn't always been a particularly difficult criteria to meet. It's certainly
been in the law as you say for quite a number of years and I've got the patent
here from Sun Micro Systems, dated 1997 and the date of grant of 1999, which
relates to a trivial algorithm in the computer that transforms the name of a
file into a form that is used by Windows 95 inside the operating system. Now,
the thing it seems to me, is that if we are talking about the directive
maintaining the status quo we definitely don't want patents like this getting
through. This is a European Patent I should say. It's not our Patent Office
that's done that, although I have another example from our Patent Office that I
think is questionable. But I think that the heart of the issue is this technical
contribution, and what really concerns us is that the barrier for technical
contribution needs to be high if we are going to allow patents in software at
all and it needs to be clear that its hard for people to infringe it just by
writing computer software. I think particularly in fields like data
compression there's a lot of opportunity for people to claim that they have made
the technical contribution when in fact it's something that anybody could have
thought of relatively easily if they were interested in compressing data -
making the amount of memory or program uses smaller, for instance. I think that
is the heart of the objections that we. We are not really objecting to the
directive itself, we are objecting to the directive not going far enough. [my
emphasis]
Perhaps its OK to have a vague definition of
"technical" if the directive does go a bit further and say that in fact, in
European courts, there will be a strong presumption of non-infringement and/or
invalidity if the patent does not involve certain things. This would allow the
patent, but provide an effective defence (IMHO, IANAL) against a patent suit for
pure software and business methods and would encourage good patents to be
filed.
I'd suggest the strong presumption of non-infringement would
apply to patents which fail to involve any of the following in the novel part of
the invention:
- Kinetic energy (mechanics)
- Heat (the ebb
and flow of vibrating atoms).
- Electricity (CPU signalling in a
spreadsheet claim is unlikely to be novel).
- Light (displaying a new
class of radar image on a monitor is not the novel bit).
- Features that
cannot be implemented using traditional tools such as pen and
paper.
The lets telecoms, robot arms, and mug printers off the
hook but gives Microsoft a really tough time in court defending their claims
that transfers of thermal energy comprse the novel part of their XML format. The
downside is that it would not prevent small companies being dragged into
courtrooms.
SJG [ Reply to This | # ]
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| Authored by: thorpie on Tuesday, April 12 2005 @ 09:42 PM EDT |
No IP (full stop)
- Why are concepts relating to programs different
from any other concepts.
If they are wrong for software they are wrong
for hardware.
If this stuffs the western economies, which I do not
think it will, so be it. IP is morally indefensible, the economy is here as our
servant, we ought not be its slave ---
The memories of a man in his
old age are the deeds of a man in his prime - Floyd, Pink [ Reply to This | # ]
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| Authored by: webster on Tuesday, April 12 2005 @ 11:19 PM EDT |
These workshops just emphasize the fact that the phrase "technical
contribution" is too vague and subjective. It renders the law legally
meaningless. Reasonable men can differ. Lower Courts are going to say that it
offers no guidance or objective standard with which to evaluate the validity of
patents. One man's "technical" is another man's "trivial"
and obvious.
The legislature is going to have to be more specific. Courts will eventually
have to declare such general language "void for vagueness."
Development and invention will stop for fear of chaos in the courts. Patents are
meant to be relied upon and give the holder a great advantage. The big boys are
going to fight them more and more. The Patent Office has been exposed.
There is a climate of change, and maybe even reform. One frequent remedy is to
set up an administrative commission with specialized judges and a more efficient
way to challenge/evaluate/enforce patents, i.e. patent judges or commissioners
only, lawyers optional, no juries, specially qualified expert witnesses, relaxed
rules of evidence, and appeal to a "Patent Appeals Court" on the
standard of substantial factual basis. Compare it to a worker's compensation
commission.
---
webster[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, April 12 2005 @ 11:44 PM EDT |
How were the rules for governing the NTSC(never twice the same colour -
sorry I couldn't resist :) or Pal TV system drawn up.
Either one consisted of
a numerous standard processes which were carried out in various ways to convert
various light signals into electrical signals which were then encoded into a
multiplexed signal with the sound for frequency and amplitude modulation
multiplication, amplification and conversion from an electrical signal into an
electromagnetic waveform and vice versa. and the whole lot kept stable by so
many feedback circuits you'd loose count - You get my point.
It enabled a
system to exist which created massmarket colour TV around which broadcast
companies, entertainment companies, television manufactures, component
manufactures, the list is endless but they all made a living from selling their
IP.
In the Pal system you had to delay some signals for later recombination
using "delay lines". How many patents were issued to the circiut designers and
manufacturers of these delay lines. They didn't all work entirely the same, I'm
betting lots. Good IP generally explains the difference in price between one
model and another.
Isn't computing and the Internet a system just like
broadcast TV, it just does more and works both ways.
You want safe email
without spammers. Adopt a worldwide system which has been drawn up by the best
people on that subject, and which is constantly monitored and improved by
experts around the world in case of problems.
Competitive mail systems would
become better and cheaper and maybe here is where the software companies could
own their precious IP but no-one would be prevented from coming up with fresh
ideas as long as they conformed to the standard.
You want DRM. If the movie
companies owned the process eg. DisneyDRM and they sold the viewer via the
internet on similar terms to pay TV?
If Disney chose M$DRM well that
would be their choice. As long as the system will allow for them to change the
contract when they find that RealplayerDRM or AppleDRM is a better cheaper
product.
Brian S.
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| Authored by: muon on Wednesday, April 13 2005 @ 01:11 AM EDT |
Groklaw friends...
My aim of this post, which perhaps should be made
into an article by PJ, is to further the debate and discussion of patents and
copyrights.
IMHO the problem is WAY worse than trying to define
what a "technical contribution" is. How? Why?
Consider...
- Copyright concerns the expression of the idea
as it is written.
- Patents protect the implementation of a specific
kind/type/class of machine.
- Originally, the closer inventions
were the more likely they could be seen by a court to be infringing. The less
similar, less likely. This was a big issue some time ago with computer chip
manufacturing patents.
- BTW, just how similar is infringing? How do you
define similar enough or not similar?
- Software
programs are virtual machines.
- A synonym for virtual
is abstract. That is, this is equally true: Software programs are
abstract machines.
- Ideas are abstractions, and,
abstractions are ideas.
- How? Abstractions are concepts or ideas of
something that is potentially or is real but need not be
real.
- Real is something that is expressed in
some concrete physical form.
- If it is not real then it is
abstract; i.e., just a thought or an idea.
- Now, note
that the implementation of an idea is an
expression.
- NOTE: Copyright protects specific
expressions.
- Certainly, a software program is an
implementation of an idea.
- NOTE: From the above, it is
obvious that this implementation is not real and is therefore
still an abstraction, an idea.
- Thus, since a program is an idea it
shouldn't be patentable as per tradition and definition of a
patent.
- Certainly, a software program etched into a
computer chip is a real implementation of an idea.
- NOTE: For the
non-techies, any computer chip can be written as a software program. If
you do this, it is called a "virtual machine" since it simulates/emulates a real
one. This "virtual machine" is, of course, not real. Similarly, given a "virtual
machine" (i.e., any software program), one can make a real computer chip for
that "virtual (software) machine". Thus, any software program can become real if
it is expressed in the form of a real computer chip.
- Thus, since a
computer chip is a real, physical machine it should be patentable as per
tradition.
- We now note that there exists both real (e.g.,
computer chips) and non-real (e.g., software programs, algorithmic ideas on
one's head) expressions of software programs.
- A computer chip is
therefore an real expression of an abstraction/idea.
- A piece of
software (e.g., Linux, Windows, MS Office, etc.) is a non-real, abstract
expression of an abstraction/idea.
So, here main
thrust of the issues/logic of import which concern "intellectual property law"
which I propose for discussion:
- If computer programs are
protectable by copyright, then copyright essentially protects both the
abstract and real (i.e., non-abstract). If acceptable, the the definition of
what is real or not is irrelevant to copyright law. If not acceptable,
then computers also has broken copyright law and the question becomes what
should we and what will we do about it?
- If computer programs are
protectable by patent, clearly we must distinguish between real and
non-real instances of machines. By definition non-real machines
are not patentable. If the machine is real, patent law allows them
to be patented. Clearly, patent law requires what is real to be
defined.
- Thus, can we define what is real and what is
not?
Oh, and before you get too excited, note that what is
real can be considered relative to the observer. Consider that is it
possible for one to perceive something as real that others may not think of as
real. One need not be having a psychotic episode for this; --this is something
that happens all of the time. When? How? Everything you encounter a situation
where you "thought" someone was mad at you/someone, when you "thought" you had
to be somewhere at some time, etc. if such situations never get corrected (e.g.,
due to a contradiction) then that will be your reality and you'll swear on the
Bible/Qu'ran/Torah/etc. that so-and-so was mad at you, that so-and-so did not
show up at some time, etc.
That is, I submit that unless you can define
an absolute, universal, non-relative definition of what is real, then
allowing patent monopolies for software (and/or any other abstract machines) is
a deadly business; --patent law's exclusion of ideas will not exclude
ideas because you won't be able to prove that exclusion in court due to
the ambiguity unless the law is written to invalidate the patent in every
case where it concerns and/or is applied to a non-real machine in whole or part
(e.g., an abstraction, an idea, a virtual machine, etc.).
Of course,
I note that protecting the idea versus the expression are not always mutally
exclusive as is implied from the above. So there is overlap between copyrights
and patents as they currently exist.
NOTE: IANAL and I did not re-read
the legal definitions of copyright and patents before submitting this. I welcome
all comments and debate! :-) [ Reply to This | # ]
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| Authored by: stuart_hc on Wednesday, April 13 2005 @ 06:13 AM EDT |
| I attended the very same workshop but was seated at the orange table (number 5).
To see my report of the workshop, including photos, click below.
http://members.optu
shome.com.au/~stuboy/UKPOWorkshop/ [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 13 2005 @ 10:09 AM EDT |
However, applying my knowledge as a telecommunication engineer, I
know that allocating bandwidth is a very big problem. The problem is that
electromagnetic spectrum is a finite commodity. Bandwidth is an allocation of a
part of this spectrum to different users. This is an age-old dilemma for all
regulators/engineers: How to maximize the usage of this restricted commodity. In
this case, it boils down to giving as much/as little bandwidth to suit the
demand of a particular base station. This illustrated to me the importance of
domain-specific knowledge in evaluating technical
contributions.
Having been at the meeting, this illustrated to
me that domain-specfic people often don't see the wider picture.
The proposed
patent is without patentable merit irrespective of whether it is useful or not.
This was very clearly argued at the time. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 13 2005 @ 12:25 PM EDT |
As a LSI Hardware Design engineer (i.e. someone who designs chips for a living)
I can tell you that case 11 does not constitute a manufacturing process at all
(apart from the final stage "manufacture", which if I understand
correctly was not part of the claim), it is purely a design process (and as such
can be considered to be purely data processing akin to that which a compiler
performs)-- examples of software that perform this task are: Synopsys Physical
Compiler and Cadence Physically Knowledgeable Synthesis.
</p>
(actually it sounds more like Synopsys Behavioural Compiler married to Synopsys
Physical Compiler)
</p>
The industry term for this process is synthesis: you take a description of the
desired function of the device (in a language such as VHDL, Verilog, SystemC,
etc.), apply some constraints (to establish things like clocks, scheduling, size
or power trade offs) and a description of the implementation technology and you
get out a gate level netlist and/or placement and routing information, or
possibly even mask information that can be used to manufacture.
</p>
IMHO a patent granted for this only makes sense if you are permitting patents on
pure algorithms: it is a pure computer activity. Regardless of the fact that the
final data *can* be used to manufacture a physical device, there is no
requirement that it should be.
[ Reply to This | # ]
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