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Looking for Better Wording for EU SW Patent Directive
Monday, May 23 2005 @ 01:19 AM EDT

As you have no doubt heard, EU Parliamentarians have suggested wording to try to fix the wildly unpopular software patent directive. Some 250 amendments to the directive have already been proposed and will be voted on in July. You can read all about it in this article in eWeek:

European parliamentarians have put forward a list of more than 200 amendments to the European Union's proposed legislation on IT patents, which, if approved, would dramatically change the character of the controversial proposal.

At stake is whether the EU will bring in more permissive rules on software patents, bringing it into line with patent practices in the United States and Japan. Currently, patents on pure software and business processes are not enforceable, making it impossible for large companies to bring their patent arsenals into play in the region.

The system is seen as creating competitive advantages for the EU's open-source economy, and for EU-based IT companies, which don't have to worry about the overhead associated with patents on software. Open-source projects are considered especially vulnerable to software patents, and open-source leaders such as Linux Torvalds have spoken out against the current directive.

In addition, the EU Parliament is asking IP lawyers for a "legally clever" patent definition:

The European Parliament (EP) has enlisted the help of intellectual property lawyers to amend the directive on the patentability of computer-implemented inventions so that companies are prevented from patenting pure software.

The draft software patent directive was adopted in March, despite the EP's request to restart work on the directive. The EP's legal affairs committee (JURI) is now deciding how to amend the directive, before it is passed for a voted to a plenary session of the parliament in July.

Speaking on Tuesday, an EP spokesman said that JURI will seek the help of legal experts in a meeting next Monday to ensure that it knows the legal implications of any amendments to the wording of the directive. This is important to ensure that companies cannot patent pure software inventions, said the spokesman.

What is wrong with the old software patent directive wording? Let's let FFII tell us what they see. Here is a paper [PDF] they gave me permission to share with you, which lists some of the arguments proponents use to lobby for the current language, and then the FFII's suggested counterarguments.

You might enjoy reading this: "Why Can't I Patent My Movie?"


Looking for Better Wording for EU SW Patent Directive | 283 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Looking for Better Wording for EU SW Patent Directive
Authored by: Anonymous on Monday, May 23 2005 @ 02:01 AM EDT
An anti-lock braking sysem for a car is (in principle) patentable. It has a useful physical effect.

The same software, the exact same bit string, used as an anti-lock braking system in a physically-realistic computer game, is not patentable.

The child who writes the computer game and spreads it round the world is to be thanked for educating us. Not taken to court and asked to hand over 90 million dollars.

Figure out how to say that in legalese, and we will get it right.

[ Reply to This | # ]

PDF unreadable here
Authored by: kwatson on Monday, May 23 2005 @ 02:08 AM EDT
My Acrobat v.7 reader here says the ~55KB PDF you indicate is unrepairable.
Corrupted PDF?

[ Reply to This | # ]

Off topic here please
Authored by: fudisbad on Monday, May 23 2005 @ 02:29 AM EDT
For current events, legal filings, 3rd amended complaints and Caldera®

Please make links clickable.
Example: <a href="">Click here</a>

See my bio for copyright details re: this post.
Darl McBride, show your evidence!

[ Reply to This | # ]

Programmer freedom of expression and publishing
Authored by: pesc on Monday, May 23 2005 @ 03:56 AM EDT
I would like the law to clarify that no matter what patents have been granted,
authoring and publishing program texts can never be a patent infringement as
this would contradict more basic laws regarding freedom of expression for
authors (programmers). If this was put in clear writing in a paragraph, it would
put an end to a lot of uncertainties around software patents and would be
beneficial to the FOSS movement.

[ Reply to This | # ]

Minor Nitpick
Authored by: Anonymous on Monday, May 23 2005 @ 04:21 AM EDT
I think the first paragraph should say "...widely misunderstood and wildly

This is evidenced by the third paragraph which gives the erroneous and oft
repeated misinformation that the directive is intended to make the law like the

Pure software as such is and always has been unpatentable and will continue to
be so. Software which makes a technical contribtuion has the potential to be
patentable. The understanding of the words technical contribution have been
understood in caselaw to mean such things as controlling a technical piece of
equipment to work better (e.g. Koch and Sterzel). One cannot draw up an
exhaustive list as it is in the nature of innovation that you know what might be
done next.

There is also substantial caselaw that makes it clear that what people around
here lovingling call "weasel wording" is unlikely to get around the

The best way to understand this case law might be to read it, I suggest starting
with the Manual of Patent Practice paragraphs 1.07 to 1.29.
But read it carefully and in full.

[ Reply to This | # ]

Not optimistic...
Authored by: Anonymous on Monday, May 23 2005 @ 05:10 AM EDT
Well, we can always hope, but when one looks at the record, there is little left
to be optimistic. All that is great in the US (open-mindness, tolerance, true
equality...) is generally regarded with contempt by our officials, who are
certain that they know better. All that is terrible (governments protecting big
corporations against citizens, liberticide laws, SW patents...) is always duly
copied and implemented.

I'm seriously considering moving out of the EU... the problem is, where?

[ Reply to This | # ]

  • Not optimistic... - Authored by: archonix on Monday, May 23 2005 @ 06:29 AM EDT
    • Or.... - Authored by: Anonymous on Monday, May 23 2005 @ 05:25 PM EDT
      • Or.... - Authored by: Anonymous on Monday, May 23 2005 @ 07:26 PM EDT
"...Linux Torvalds..." ????
Authored by: Anonymous on Monday, May 23 2005 @ 05:45 AM EDT
Need I say more?

[ Reply to This | # ]

Length of patent?
Authored by: Anonymous on Monday, May 23 2005 @ 06:32 AM EDT
Why worry about the wording, why not just give a much shorter life to the
patent? Software is a fast moving industry, so why shouldn't a software patent
last only 6 or 12 months? Gives the developing company a chance to make money
off it, and yet doesn't overly restrict others.

Just a thought.


[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: NickFortune on Monday, May 23 2005 @ 06:37 AM EDT
  • If you can kick it, you can patent it
  • If you can't kick it, you can't patent it
  • Kicking the container does not kick the contents

Software is an abstraction. It cannot be kicked and so can never be patented. It can be contained by items that can be kicked, such as computers and embedded devices, and these containers can be patented. But the software they contain remains unpatentable.

Put another way, you can patent any device you wish, but not the logic that makes it work. If that logic can be extracted and made to run on a different platform, that is not covered by the patent, because the logic is software and software cannot be patented.

[ Reply to This | # ]

"Legally clever?" Isn't that what got us here?
Authored by: mwa on Monday, May 23 2005 @ 07:54 AM EDT
Why do law makers have to make things so difficult? What's wrong with:

    Computer programs, either by themselves or as a component of a larger system, shall not be patentable.
Software is protectable by copyright just like any other intangible expression of an idea. All this debate is due to an small, but powerful, minority wanting to turn their expression of ideas into property so they can use it as a club against competitors. That is "legally clever". It's also wrong.

Honestly, This is not a difficult concept. Is a poem patentable? No. Is a poem patentable when written on paper? No. Is a poem patentable when carved into stone tablets? No. Is a poem patentable when burned onto an EPROM? No. If a poem does something useful (e.g. is "functional", like describe how to bake a cake) is it patentable then? No. What if it has a "technical effect?", like moving the reader to tears, is it patentable then? No.

Why is a poem not patentable? Because it's an expression of an idea. That expression may have significant "function" or profound "technical effect." That does not change the fact that it is an expression of ideas. It is the provence of thought. It both originates in thought and has the power to influence thought. What our oponents in this debate fail to understand (or refuse to acknowledge) is that computer software is nothing more than a new way to affix ideas in a tangible medium. We have to make clear that even considering patents on software is no different than considering patents on any other form of expression. Patents on poetry, literature, news reports, music, paintings, sculpture, and the like are, and should be, unthinkable.

def theDeathOfHumanCulture():

    while not understand(Software == Expression):
      apply(Expression, Ownership)
      if Expression is Owned:
        Culture = Culture - Expression
        apply(Owner, Control + Power)
      if Owner.hasCompetition():
          competitor = Owner.Competition.pop()
          del competitor
        except CompetitorIsRich:
          while Competitor.hasMoney():
      if RemainingExpression == None:
        raise CultureIsDead

My comments on Groklaw are released under the Creative Commons license Attribution-Noncommercial 2.0. P.J. has permission for commercial use (she's earned it!)

[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: Anonymous on Monday, May 23 2005 @ 08:06 AM EDT
Our friend Lord Sainsbury, he of the 'going-round-the-UK-holding-sessions-to-figure-out-what-a-software-patent-shoul d-be', is apparently sincerely a philanthropist. He intends to use up his fortune before he dies on ventures that he supports, because he is not confident that his trustees would support the right ventures after he is gone.

He's a Gift Giver. Same as Linus Torvalds.

So why not take him at his word, figure that he's honestly trying to answer what he sees as a hard question, give him the gifts , and see if he'll come on-side ?

[ Reply to This | # ]

  • No! - Authored by: Anonymous on Monday, May 23 2005 @ 05:44 PM EDT
    • No! - Authored by: Anonymous on Monday, May 23 2005 @ 06:36 PM EDT
Better wording is is needed
Authored by: belboz on Monday, May 23 2005 @ 08:09 AM EDT
I had an interesting talk with a guy from a large US company regarding patents.
He has applied for a lot of patents, over the years, and therefore knows the
process. He said:

The proposed EU reform would:

1) Allow for all software patents - it is easy to word the patent application to
show "technical effect" (OK - we knew that already)

2) Allow for patenting business processes - just disguise it as a software

He also said that you actually didn't have to write any software in order to get
a patent. You just had to describe your idea (an as broad terms ap possibly,
obviously). So much for the old argument: "we need patents to protect our
massive investment".

I hope they come to their senses in Brussels...

Henrik / Denmark

[ Reply to This | # ]

Copyright OR patents ...
Authored by: Wol on Monday, May 23 2005 @ 08:28 AM EDT
Don't know how to word it, but just say that copyright and patents are mutually

Oh - and add that if you wish to file for a patent, you must submit *working*
*source* code. Any such source, by the mere act of applying for a patent, is
placed into the public domain by the applicant. And if the applicant doesn't
have the right to place the code in the public domain, it is obviously covered
by copyright and therefore unpatentable.


[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: micheal on Monday, May 23 2005 @ 09:04 AM EDT
Your article has:

"Some 250 amendments"

Your quote and the eweek article have:

"list of more than 200 amendments"


If I have anything to give, made of this life I live, it is this song, which I
have made. Now in your keeping it is laid.

[ Reply to This | # ]

Asking Patent Lawyers to do this is like asking the WOLF to watch over the SHEEP!
Authored by: Anonymous on Monday, May 23 2005 @ 09:09 AM EDT
It seems that in the British Software Patent Language attempts that a survey of
attendees when asked if there should be software patents resulted in the
technologists ALL saying NO... and the LAWYERS ALL SAID YES THAT SOFTWARE SHOULD

It seems that asking the Software Patent Lawyers to find the wording... is like
asking the hungry wolf to protect the herd of fattened sheep. Why can't the
technology side be included in this "wording" search?

Because then logic would show that there is not any language that can be used to
exclude software patents once a step in the direction of software patents is
taken. It boils down to having NO software patents or having software patents.

And the Lawyers in past government sponsored sessions have ALL said they want
software patents. SO - where is the remedy?

The politicians are going to say that what ever they come up with was on advise
of legal council. That will be their way to shift the blame for the damage that
software patents will do once they are approved. This effort is just a way to
shift the blame onto the lawyers (who will gladdly accept the blame when they
end up getting paid well for the resulting confusion and billable-hour law suits
that will result from. Hey, it's just money and we know from the SCOx suit
what lawyers think of money.

[ Reply to This | # ]

Tempting are the ways of the Dark Side
Authored by: clark_kent on Monday, May 23 2005 @ 09:40 AM EDT
Yes, I just saw Star Wars III, "Revenge of the Sith." And in the story Chancellor Palpatine, is granted emergency powers by the Republic to deal with the oncoming droid army headed by the separatists. The funny things is, Palpatine is living a two-sided life, one as a Senator, and one as the Sith Lord, Darth Sidius. He is actually the motivation of the Droid Army, as well as the motivation for having formed the clone Army so long ago, and he is controlling the separatists through Count Dooku. And Darth Sidius gains control of the Republic through the killing off of the defenders of the Republic, the Jedi, by his new apprentice, young Anakin Skywalker, who becomes Darth Vader, and taking control of the clone army (I was right about one thing - the clone army BECOMES the army of Imperial Stormtroopers.) The republic has cracked, and freedom is controlled by the new Emperor, Darth Sidius. The republic is completely dissolved in Episode 4 by Sidius. It takes some time, but "freedom" eventually falls, and all walks of life are brought under the will of a Great Desciever, Darth Sidius.

What is a decieiver? From ...

de·ceiv·er noun - de·ceiv·ing·ly /-'sE-vi[ng]-lE/ adverb synonyms DECEIVE, MISLEAD, DELUDE, BEGUILE mean to lead astray or frustrate usually by underhandedness. DECEIVE implies imposing a false idea or belief that causes ignorance, bewilderment, or helplessness (tried to deceive me about the cost). MISLEAD implies a leading astray that may or may not be intentional (I was misled by the confusing sign). DELUDE implies deceiving so thoroughly as to obscure the truth (we were deluded into thinking we were safe). BEGUILE stresses the use of charm and persuasion in deceiving (was beguiled by false promises). - © 2005 Merriam-Webster, Inc.

Was not young Anikan beguiled by false promises? Was not the Republic? Do you see parallels of this story with what is happening with Democracy today? How about the computer industry? Would pure software patents be an element that fits the definition of a republic or democracy, or a monarchy? Do you trust the heart of man to have a monarchy to dictate what the limits of your freedoms are? Or do you want a republic to guarentee your freedoms? Are we, as a computer market republic, going to be beguiled by false promises? The story-line of Star Wars is a basic reflection of human nature. There are majority of people who wish to keep freedom and the Democratic processes alive. These people want open development of software. These people want open standards, not owned by one enity. These people are willing to contribute to a pool of resources shared by all. And, unfortunately, there are some people who want it all for themselves, and are willing to only share what they obtain for themselves only with people who are compliant to their Will, only people who will benefit their interests. Do they give some benefit back to those people. Sure they do, but it is very shallow compared to the long-term riches one obtains from a true Democratic process (not implying that the U.S. has a true democratic process in place in the computer market.) I believe we have a "Sith Lord" or a number "Sith" in control of our former computer coded republic. They lead double lives, with a "normal" life, attempting to give a face that they too are with the Republic, but what they really want, is eventual absolute control. These "Sith" wish nothing more than to smite the Jedi of the computer world so he can obtain even more control, and bring all control and profit under their rule! But do you think we are in a crisis that justifies that freedoms are taken away so that a republic can be restored, such as the superceding of patent law over copyright law? Do not be deceived! Once monarchy control is granted by pure software patents, the remains of the republic of free expression in software will disappear or become irrelevant. And the means to reverse such an action will be no more for quite a long time to come. This is a one way door. In order to maintain a true or the truest possible democracy is to say no to pure software patents.

How do you fight monarchy and restore democracy to the computer market? Support the "Jedi" of the computer market, who fight for the ideals of Democracy, not the Sith of the computer market, who wish to monopolize and lock out all other who are contrary to their methods, beliefs, practices, and Will. Or like Darth Vader, you will face the very hard lesson that it was much better to enjoy the freedoms of the democracy by thinking of others, living in a republic that granted rights of life, rather than the slavery of the monarchy by only thinking of the interests of ones self, and living in death.

Star Wars and elements of Starwars © Copyright LucasFilm - Star Wars website

[ Reply to This | # ]

Yet another patent system reform proposal
Authored by: tfry on Monday, May 23 2005 @ 10:58 AM EDT
Well, not like I really believe in this idea, but since I
feel it's too pretty to just throw away, here's another
proposal for a reform of the patent system. Don't know, if
others have proposed similar rules before. It's meant to
make it harder for large companies to file lots of
questionable patents.

The rules:
A. A company may be banned temporarily from filing and/or
acquiring new patents.
B. Banning is based on the following simple rules:
1) If a pending patent (-filing) you own is rejected, you
are banned for 3 weeks. This is regardless of the reasons
for rejection.
2) If a patent already granted is revoked (re-examination
by the patent office / court order), you are banned for 6
3) If you withdraw a patent/application (or donate it to
the public domain) that is not
currently under examination, the ban will be merely 1
week (in a transitory period, there will be no ban at all
in this case).
4) In case you're already banned during 1)-3), the ban is
extended by the respective period.
C. You're responsible for all patents you hold the rights
to, whether you filed them yourself or just acquired them
one way or another.

The advantages:
- This reform would not affect "small" applicants at all.
In fact it will only be effective for entities that file
or acquire at least 9 patents each year.
- The more patents you want to file, the better you need
to make sure, your patents are actually valid.
- "Frequent filers" can safely be assumed to have the
resources to check their patents very thoroughly.
- No need to make sanctions depend on hard to define
concepts such as "frivolous" patents
- Withdrawing patents "voluntarily" is rewarded over
risking they get ruled invalid on re-examination.
- You can delay your competitors by (successfully)
challenging their questionable patents

The disadvantages:
- Only a minor reform, addressing only the problem of
frivolous patent applications, not the question, what
should be patentable in the first place
- It may (or may not?) be hard to define
"entity"/"company" in a way good enough to prevent them
from just using small spin-offs for questionable patents
(where banning a single spin-off would not be much of a
problem for the "company").
- Large companies will claim this is unfairly biased
against them.
- No chance of passing legislation.

[ Reply to This | # ]

Old goal - control your thoughts. New goal - claim your thoughts and sue for IP violations.
Authored by: Anonymous on Monday, May 23 2005 @ 11:17 AM EDT
In the past, many of the politically and religiously powerful have tried to
control what people thought. They must have come to the realization that thought
control is impossible. So now there is a move to claim your thoughts and charge
you for them. Will the final steps result in the poor being imprisoned until
they pay the licensing fee?

It seems to me that there is a movement to institute a process allowing the
ideas of others to be 'stolen' by financially dominate entities that are
controlled by a relative few. Vague IP patents will allow abuse of the majority
by a small minority.

Many, many ... moons ago, when I was in high school, we discussed the
possibility of harnessing electricity generated by the human body. Technology
has put this within reach. I would make more money by patenting the idea than I
would by inventing a tangible product. This would give me control of an entire
future industry. All it would cost me is the time to type up a proposal and fill
out some forms, then pay a patent attorney and filing fees. Now all I have to do
is wait for some poor sap to invent an actual product, then sue him for
infringement. If I cannot wait too long , I could then employ the use of
lobbyists and have some mandate sent to the defense department (of any nation)
and have small contractors develop the technology. Small contractors are not
likely to find the patentholder of an idea.


[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: Nick Bridge on Monday, May 23 2005 @ 12:14 PM EDT
I think the problem is they're trying to make an impossible distinction.

Software is software, whether it controls a braking system, or calculates
weather patterns.

It's like trying to draw a line on the ocean - the medium is always moving.

How much of todays computers are software? Just what loads from disk?

What about the bios? What about the video cards and GPUs?

You might say these are hardware, but what about when you run simulations on
GPUs? Just because the GPU exists in the graphics card and has the purpose of
accelerating graphics processing doesn't make it any less a general-purpose
computer. You could quite happily use a couple of extra GPUs in a system for
business purposes.

And what about firmware? The firmware in a modem - is that hardware? The
firmware in a firewall? Is your answer any different when you consider that
many off-the-shelf hardware firewalls use Linux and IPTABLES as the
Or that FOSS developers are writing firmware for some "winmodems"? Is
that not actually software?

What about microcode? Intel chips (and others) allow runtime modification to
the microcode in the chip. The current purpose is to allow Intel to release
fixes to their CPUs. But is that hardware? Is there a difference when CPU
manufacturers provide such facilities to allow certain algorithms to be entirely
encoded in microcode, for the purpose of speeding up general purpose software?

General purpose chips exist that you can program with thousands of gates. You
have to design the entire chip layout - ANDs NOTs ORs, etc - you get the
picture. The chip is obviously hardware, but what about the layout? You can
run these layouts through a simulator. When it's producing the results
expected, you program the chip with the layout. Is it hardware or software.
Does it make a difference if the layout is running on a "general purpose
computer" or operating within the confines of the chip?

The gates are just a sequence of logic gates. Simple mathematical operators
that are combine together to form more complex mathematical operators and
functions. It's software, period.

Even if "code" is used in a control mechanism, and cannot be used for
any other purpose, it should still not be patentable. It is still a sequence of
mathematical operators and functions.

And mathematics should never be subject to patents, whatever the form.

[ Reply to This | # ]

What about Moral Rights?
Authored by: vrimj on Monday, May 23 2005 @ 12:19 PM EDT
I know very little about Europen Law, but it was my understanding that copyright
extened not only economic rights to the creator, but also moral rights. I think
that moral rights include the right not to have your work altered or changed
without your premission. Would this be the case for copyrighted software in
europe? How big a problem is this?

[ Reply to This | # ]

Interoperability is the Issue
Authored by: rdc3 on Monday, May 23 2005 @ 02:12 PM EDT

A fundamental concept in software engineering is the difference between specifications and implementations of systems. A specification describes what a system is to do, while an implementation describes how the specified requirements may be achieved through particular technical effects.

Software-related patents (or copyrights, for that matter) are at their most dangerous when they attempt to cover specifications as well as implementations. While a particularly inventive way of implementing a specification may merit some form of protection, it is essential that alternative implementations using different technical means be allowed.

Protocols and formats are important types of specifications by which computer-based systems interoperate. Interoperation of systems is the fundamental engine of growth and development of the information technology sector generally and the Internet in particular. Multiple implementations of interoperating systems are critical to this growth and to the mitigation of security threats that often affect deployments of technology monoculture.

The W3C patent policy uses the term "essential claim" for any patent claim that is necessarily infringed by any implementation of a specification. Although the policy requires that royalty-free licenses be granted for any recommendation that is covered by such a claim, this is not good enough, in my view. (Although it is certainly better than nothing.)

The patentability of protocols, formats and other specifications should be equally proscribed for all computer-implemented inventions whether those inventions are pure software, systems involving software and hardware components or pure hardware. To limit the prohibitions to software patents alone could dangerously allow specifications to be tied up through patents involving hardware.

My suggestion for wording with respect to EU software patent legislation would be that patent claims for any computer-implemented invention involving protocols or formats must be limited to the the technical effects that achieve a novel implementation of an open specification. The specification must not itself be covered by the claims and must be documented by reference or otherwise in the application. Furthermore, I'd also suggest a variant the IETF standards process: at least one non-infringing alternative realization must be cited or described in sufficient detail to allow implementation by one ordinarily skilled in the art.

Beyond this, I think there would be merit to a system that allows FOSS implementations of patented software technology under some form of "patentleft" provision. IBM and Sun have made significant steps in this regard. Many OSI-approved software licenses include patent reciprocity language. I'd like to see industry take further steps in these directions and universities join in by similarly promoting open source in technology transfer policies.

Prof. Rob Cameron
Simon Fraser University

[ Reply to This | # ]

The root problem - the patent office being asked to make decisions well outside it's scope.
Authored by: Anonymous on Monday, May 23 2005 @ 02:21 PM EDT
Even worse than patenting of software is the patenting of
algorithms/business methods, specifications/standards, and
data structures/encoding formats. These would not be
patentable in any other field of patent law, but these
have been patented in the US.

Algorithms are mathematical principles/methods and should
therefore not be patentable. Business methods are a
similar concept and should also not be patentable.

Specifications and standards have been patented in the US
(eg. Microsoft's sender-ID patents and codec and
networking protocol and authentication patents it is
trying to get the EU anti-trust commission to foist on the
European public by sleight of hand after it was convicted
if anti-trust crimes by the EU for abusing it's monopoly
position by preventing competitors from interoperating
with it's systems. This is really rich. The punishment for
Microsoft's anti-trust crimes is for the EU to enforce
Microsoft's monopoly on the people of the EU through
patents that aren't even valid in the EU. To give you an
example of how absurd specification patents are in the
context of patents permitted for other fields, imagine a
PC vendor being able to patent a specification for a
common set of components used together eg. the use of
Opteron dual-core CPUs, PCI expansion slots, and DDR
memory on a motherboard and prevent others from using that
combination of features on a motherboard. Sure, it may be
a combination that nobody has come up with before, but
should it be patentable? Does it have any novelty? Does
patenting have any purpose other than to prevent
competition? What conceivable benefit would there be in
allowing such patents? What massive investment in R&D are
such patents intended to protect? The cost of coming up
with the patentable idea (the specific combination of
components) in this miniscule, and others will come up
with it anyway even without such "protection" being
granted. Specification patents permitted under software
patents is every bit as ridiculous. The most eloquent
indication of how inappropriate, is the fact that there
are so many instances where programmers accidentally
infringe on software patents, by reinventing the idea.
This is the ultimate and most objective proof of
obviousness, and the ultimate indication that software
patents are not required to protect innovation, because
this innovation happens by itself without people actually
looking at the patented idea and copying it.

Essentially the same arguments apply to data structures
and encoding formats.

The problem with trying to word patent legislation is that
it's interpretation is being left to the patent office
officials to determine. While I have no problem with the
patent office deciding what is or is not patentable within
their scope of responsibility, it is completely
inappropriate to let them decide the scope of
patentability. For this reason, it is vital to expressly
state and exclude all things that are not patentable as
part of the basic patent law. The patent office can then
interpret the scope of the wording of the new patent law
within the scope that this allows them. The patent law
should expressly state:

1) Specifications, protocols, data formats, data
structures, and methods of encoding data shall not be
2) Algorithms and business methods shall not be
3) Software shall not be patentable. Software being that
part of the computer innovation that does not have a
physical embodiment.
4) Patents are permitted for computer implemented
innovations, which are defined as a combination specific
hardware and software embedded within, in a unique
combination in such a way as to be patentable according to
the rules and prevailing standards for device patents if
the hardware and the embedded software part is treated as
a physical component within the device being patented,
provided such an invention is not merely a computer
implementation of a a process or function that has been
carried out by other means previously.

Now, given this set of criteria to work within, the patent
office can go about doing their job instead of being
handed the job of deciding what should or shouldn't be

[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: fredex on Monday, May 23 2005 @ 02:52 PM EDT
We can always hope and pray for better wording.

one area where I think better wording is needed, because the commonly-used
wording is highly imprecise, is in the distinction between "patenting
software" (or "software patents") and patenting "computer

Clearly (clear to me, at least, and I suspect most Groklaw readers), computer a
program is a "work" that should be susceptible to only copyright. A
Computer program is an entire executable program (perhaps comprised also of the
source code for said executable). this is not what *I* think of when I hear
mention of software patents.

"Software patents", to my mind, connote patenting the underlying
algorithms/processes/what-have-you used to construct a computer program.
Patenting XOR, or the old AT&T (if I remember rightly) patent on
"backing store" that is alleged to be violated by the X-Window System,
or the Lempel-Ziv compression patents of Unisys and IBM.

The difference is huge, and yet the discussion of European patents is rife with
talk of patenting "software programs" or "computer
programs". The politicians EITHER don't understand the diference (likely)
or are puruposely being obscure/obtuse for the purposes of obfuscation (I think
perhaps not much less likely).

I do not condone the former (patenting a program--the very concept boggles the
mind) and I also do not condone the latter, i.e., patenting the basic building
blocks that one uses to construct programs.

How to write suitable wording that not only distinguishes between the two, but
also highlights the silliness of either?

[ Reply to This | # ]

Looking for Better Wording for EU SW Patent Directive
Authored by: contrarian on Tuesday, May 24 2005 @ 05:36 AM EDT

The desire to create clever wording to define a software patent is an interesting intellectual exercise and I'm sure it's of the greatest interest to endless lawyer minds. I sat through the JURI hearing in Brussels yesterday and listened to the expert testimony of the four experts assembled by the EP to advise them and it was by far the favourite subject of debate, with endless hypothesising in various languages akin to debates about the number of angels that can be clustered on a pin head and how exactly to define a pin head.

However, the testimony that was actually the most interesting did not focus on this issue. Prof Reto Hilty, the director of the respected Max Planck Institute, delivered a very wise paper that took a step back and considered the actual effects of all the amendments submitted so far on the weight and substance of the Directive. Hilty's conclusion asserts (his emphasis):

Some important issues in the EP's legislative resolution should be defended against the Council's common position. However, the coherence and the clarity could be improved, mainly concerning the differences between product claims and process claims, but also concerning the exclusions

Some important issues are lacking in the EP's legislative resolution, issues that could lead to a compromise between the concerns of adequate protection of the relevant industries on the one hand, and the concerns of avoiding obstructions of technical development of computer programs on the other hand.

To achieve such a compromise, specific limitations - in the case of software claimed as a process, particulalrly a limitation of the scope of protection to the claimed application (function) - and specific requirements (possibly the disclosure of the source code) could be included.

Hilty commented that the amendments made to date on defining 'technical' and attempting to limit patentability "make little fundamental difference" and remain open to interpretation to the unaccountable EPO which is controlled by a treaty made outside the authority of the European Union.

Hilty recommended two areas of focus. The first was limiting the scope of protection offered by patents - restricting their application to, for example, only a specific application, or excluding uses such as interoperability from patent protection. The second was ensuring that patents actually enrich the commons in exchange for their monopoly. He said that

patent claims usually define a problem and promise its solution by making use of a computer program, but do not reveal the program itself ... This cannot be satisfactory

Hilty therefore recommends that any patent involving software in any way must include the source code to the program claimed as part of the invention.

I think Hilty's wake-up call is very important. We're all doing the pedant thing supposed intellectuals do and falling into the trap being laid by the status quo, messing with the front end of the process and leaving the real problems unsolved. The real problem is that software patents already exist yet both provide too much uncertainty to allow those of us with no legal counsel to function and at the same time break the social contract that patents represent. We need certainty in the process and that comes not by giving the EPO and national patent offices new language to interpret and then leaving 20+ national courts to sort out the mess, but by going to the back end of the process too and limiting the scope of its applicability so that FLOSS development is protected. I fear that if we expend all our energy at the front end we are in effect serving the cause of the status quo.

[ Reply to This | # ]

Correction: LInus Torvalds, not Linux Torvalds
Authored by: darkonc on Tuesday, May 24 2005 @ 07:43 AM EDT
From the article:
and open-source leaders such as Linux Linus Torvalds have spoken out against the current directive.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Seconded: The publishing/execution of texts/programs
Authored by: darkonc on Tuesday, May 24 2005 @ 07:53 AM EDT
The creation and publication of texts, including programs in either source or compiled formats as well as the reading/execution of such texts shal not be patentable.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

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