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A Groklaw Suggestion on SW Patent Wording |
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Wednesday, June 01 2005 @ 07:53 AM EDT
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You probably already know that the U.K. Patent Office recently reported
the results
of its workshops designed to come up with a definition of "technical contribution" for
purposes of patent law. The conclusions of the report were not good
news for anyone involved in Europe's great software patent debate. None of the definitions1 seemed to work. None resulted in a perfect match with what the UKPO views as current patent law. There was considerable confusion over the definitions and what to do with the case studies. When participants were asked whether software patents should be allowed, at many workshops several participants immediately responded with "What do you mean by software"? That is, actually, the right question. The workshops' participants were lawyers (35%), programmers (55%), and 10% from academia, the media and other organizations. You would assume a level of sophistication, and yet they did not vote for or against patentability on hypothetical case studies in harmony with projected results, using the definitions given. In fact, all of the definitions, the report concluded, would "make a significant change to the boundary between what is and is not patentable." Significantly, at each workshop the tested Definition
A
was the definition used in the Council of the European Union's common
position on the European Commission's patentability of
computer-implemented inventions directive
("CIID") [PDF], and Definition
B
was the definition submitted by the U.K. chapter of the Foundation for
Free Information Infrastructure, based on the language advocated by
FFII before the European Council and Parliament. Neither those definitions
nor any other fared well in the U.K. Patent
Office's view. Their report concluded:
It is clear from the workshops that none of the definitions
as they stood:
- had wholehearted or even widespread support;
- tallied closely with the status quo when applied by the
attendees at the workshops (i.e., they would all make a significant change
to the boundary between what is and is not patentable);
- was unambiguous (i.e., gave a near-unanimous answer in most
cases)[.]
The European Council's definition received surprisingly low marks in
the report. The results indicate -- just as opponents have been saying all along -- that it is so poorly worded, it would open the floodgates for software patents rather than preserving the status quo, its purported goal. Since no one has come up with ideal language yet, we thought Groklaw might take a shot at it, and here we present suggested wording, for your consideration. Note that views on software patents and how they should be handled vary. Our objective was to see if better language could be devised to accomplish the UK Patent Office's stated goal.
In the U.K. Patent Office's words, here's what they found wrong with the CIID wording in this real-life test:
It would be fair to say the workshops felt definition A,
taken from the Council of the European Union's common position, did not
achieve what it sets out to achieve. It was ambiguous -- possibly
because the references to novelty and non-obviousness confuse the
test -- and appeared to be more permissive than current European law in
terms
of what is patentable.
On the FFII proposal, participants agreed it was better than the
common
position definition, and the best -- if the goal was to abolish all
forms of software
patents. But still, they felt that it would allow some software patents and
many
disagreed on the FFII definition's
interpretation. Indeed, the workshops approved one of the test case
software patent claims under the FFII definition. Now what? Obviously, it may
be back to the drawing board
for all concerned. In the aftermath of
the workshops, before the UKPO published its report, Groklaw folks from
both sides of the Atlantic, including legal and software engineering
professionals, began a collaboration to develop a definition for
"technical contribution" that meets the needs of FOSS developers and
end users. We had already polled our readers for their ideas, and after that, a small group started trying to formulate language that might be helpful. Following some 30 drafts, the proposed definition of
"technical contribution" is set
forth below and is ready for your review. If there is one thing we've learned from the effort, it is that finding the right language is a lot harder than it looks. If you spot a way to improve our language, please say so. This is our draft language:
The Groklaw definition
1. Applicability. As applied to all patents involving
any
computer or other programmable device or otherwise involving the
automated processing of information, the following provisions shall
apply:
a. Exclusion: A patent
application and
issued patent may, without thereby invalidating it and to the extent
needed to explain the invention claimed, include a description of
software; but no
storage, communication, manipulation, or
transformation of information in a software-controlled process, however
described, shall be construed as being within a patentable field of
technology or to constitute a technical contribution, nor shall any
software or other information otherwise be construed as patentable
subject matter. In interpreting these provisions, the following
definitions shall apply throughout:
i. "Technical contribution"
means a
substantial advance to the state of knowledge in a field of technology
made by a claimed invention considered as a whole.
ii. "Software" means any and all
instruction
sets for a physical device or for networked physical devices but shall
exclude all carriers or physical devices. However, "software" shall
include, inter alia, any representation of software in any
manipulable physical state of a carrier or physical device.
iii. "Physical device"
means any hardware computer, peripheral device, or other physical
apparatus employing a carrier that alone or in combination performs, inter
alia,
computation, information storage, or communication tasks, but shall
exclude any information so computed, stored, or communicated.
iv. "Carrier" means a force of nature
manipulated for purposes of conveying or storing information, but shall
exclude any information so conveyed or stored.
v. "Information" means any and all
assignments
of discrete symbolic meaning to a discrete manipulable
physical state of a carrier or physical device, without regard to
levels of
abstraction of such information. "Information" shall be construed in
its most inclusive sense and shall include, inter alia, all
software and data.
The Groklaw definition draws from European Patent Convention Article
52
("EPC/52") and amendments submitted by members of the European
Parliament ("MEPs"), as well as ideas presented in the U.K. Patent
Office
definitions, scientific principles, numerous patent legal materials,
and invaluable feedback from the FFII and others. It should also be noted that
the Groklaw definition focuses on defining "technical
contribution" but does not specifically address other thorny issues
around the CIID and Council common position, such as program claims and interoperability. The Groklaw definition prohibits software patents by dividing the
computing universe into three sets: (i) physical
devices; (ii) carriers; and (iii) information. Software in turn is
recognized as one subset of the information set, which also includes
(but is not limited to) data. The Groklaw definition's language
prohibits the
patenting of all information clear down to the bit level.
Our approach of singling out "information" as the key is not our original idea. A careful reading of EPC/52
will show that the non-patentability of information is an implicit
underlying principle. Moreover, drawing that line has been called for
in at least several separate proposals by MEPs. Just three examples:
Amendment 236 by MEPs Lichtenberger & Frassoni,
justification text:
The dividing
line between the material and immaterial world, and hence between
what is patentable and what is not, can be defined with legal
certainty. Once a physical signal is digitised, it becomes symbolic
information, which can be manipulated in an abstract fashion in
software, with no possible technical effect.
Amendment 191 by MEPs Kudrycka &
Zwiefka, justification text:
Art 52 EPC
says
that programs for computers etc are not inventions in the sense of
patent law, i.e. that a system consisting of generic computing
hardware and some combination of calculation rules operating on it
can not form the object of a patent. It does not say that such
systems can be patented by declaring them to be "not as such"
or "technical". This amendment reconfirms Art 52 EPC. Note
that the exclusion of programs for computers is not an exception, it
is part of the rule for defining what an "invention" is.
Amendment
141 by Kauppi, MEP:
Member States shall ensure that the
distribution and publication of
information, in whatever form, can never constitute direct or indirect
infringement of a patent.
Our intended recipe to avoid backdoor
software
patents, by the way, is this: when
a computer is involved in producing a physical effect, you mentally
replace the software with a "magic"
(but non-technical and
non-patentable) black box that does the same thing by
unspecified means. Is what is left a technical contribution? If not,
the invention is non-patentable. If so, the invention is patentable,
but the software remains non-patentable. We strove to identify language that
can satisfy the needs of appliance manufacturers to protect their
inventions, but protect SMEs and individual software developers from
the software "patent thicket."
-- Lord Sainsbury expressed a similar desire at the meeting at the DTI
(Department of Trade and Industry) in December. So, we tried for a balance,
not making the presence of software an unfair
hindrance to obtaining a patent for a device. Here, we took our
guidance from EPC/52 itself. The original intent of its prohibition
against patenting of software "as such"2
was to allow necessary software to be discussed in patent applications,
but to deny any patent protection for such software. Therefore we have
included that concept in the Groklaw definition. Where software is part
of the way a new apparatus (which has inventive physical aspects)
works, you may end up with a situation where there is only a single
algorithm capable of realising the invention, and therefore the patent
to the invention as a whole does implicitly impact upon the software
for that invention. The definition would nonetheless allow a patent on the
apparatus; but that is different from allowing the software itself to
be patented.
So the manufacturers of mobile phones, or car engine
management
systems, or traffic lights, would be able to patent appliances which may include
software as the method of accomplishing a
patentable technical process. But those patents would not stop someone
else interoperating with their equipment, nor block access to
or use of the information (i.e. software) in the devices. The software,
being information, may still be protectable by copyright, trade secret
law or reverse engineering restrictions. Combined with the patent
protection available for the apparatus as a whole, we believe this
offers enough protection for the genuine innovator to secure the market
advantage they deserve.
One might quite reasonably ask: "Why not simply say 'you
can't patent
software'?" There are a number of reasons, such as:
(1) You have to
define what is and is not software. For
example, someone
might be attempt to patent an XML word processor format on the grounds
that a data format "isn't software." It is all too easy, though, to
fall into an endless regress of
definitions, so we've tried to reach the "terra firma" of terms with
established scientific/legal definitions.
(2) A simple declaration "no patents on software" could be
interpreted
narrowly -- to have the same meaning as the current "no patents on
computer programs as such" -- in which case no progress would have been
made.
(3) To guard against the de facto software patent,
that is, a
patent that doesn't mention software but that you cannot avoid
infringing by writing software on a PC that enacts the claimed process.
(4) To make clear, because of EPC/52, that "no software patents" does not mean that
non-informational computing inventions are also non-patentable.
(5) So that the definition would be sufficiently explanatory that all concerned,
both laypersons and experts, would be able to understand not only what is
excluded from patentability but also why it is excluded.
(6) To
invite debate on whether software is, in fact, information and if so, unpatentable.
One thing that came out very clearly from all the activity
around
the workshops, both there and here at Groklaw, was that finding the
right wording
was no easy task. For sure, this latest proposal won't be perfect;
but perhaps you can improve it further.
1 Participants were invited to send in wording that they thought would work, and from the 208 suggestions received, the UK Patent Office chose 12.
While not all were considered at each of the 13 workshops, the 12 different
definitions of "technical contribution" were tested against 18
hypothetical "invention" case studies during the workshops, which were
attended by some 300 persons. You can read the case studies used here and in more detail here. Of the hypothetical cases, 9 inventions were considered to be patentable and 9 were considered to be unpatentable under current law by the UKPO. Breaking it down further, cases 1-5 were thought to be clearly patentable under current law, 6-10 were considered clearly not patentable under current law, and the rest were borderline, half leaning toward patentability and half not. Each case study took the form of a brief background and explanation of an imaginary computer implemented invention. In each case, the explanation formed the basis of a claim which was used in the workshops to test possible definitions of technical contribution.
2 On EPC/52's
original intent and the history of its erosion, see the articles
collected by FFII on its Art 52 EPC:
Interpretation and Revision page.
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Authored by: Freespirit on Wednesday, June 01 2005 @ 08:04 AM EDT |
I can vouch for this definition! If i read it correctly (sligthly legaleese but
well explained), it wery clearly states that NO pure software solutions can be
patented and neither can the software parts of composite systems.
Lets see how this fares with the ukpo
Freespirit[ Reply to This | # ]
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Authored by: kinrite on Wednesday, June 01 2005 @ 08:04 AM EDT |
Well done everyone.
---
"You can fool all the people some of the time, and some of the people all the
time, but you cannot fool all the people all the time." Abraham Lincoln
1809-1865[ Reply to This | # ]
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Authored by: Freespirit on Wednesday, June 01 2005 @ 08:06 AM EDT |
Guess its my turn to start the correction thread today!
Freespirit[ Reply to This | # ]
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Authored by: Freespirit on Wednesday, June 01 2005 @ 08:10 AM EDT |
And please make those links clickable! :-) (There is an example link on the
"Post a Comment" page)
Freespirit[ Reply to This | # ]
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- New Section 21 procedures - Authored by: Anonymous on Wednesday, June 01 2005 @ 08:22 AM EDT
- Reminder: SCOX "Earnings"/Conference call today - Authored by: fudisbad on Wednesday, June 01 2005 @ 08:58 AM EDT
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- EU delays Microsoft sanctions - Authored by: SpaceLifeForm on Wednesday, June 01 2005 @ 09:52 AM EDT
- MS's Old tricks not working? - Authored by: Anonymous on Wednesday, June 01 2005 @ 10:52 AM EDT
- Very interesting - Authored by: Anonymous on Wednesday, June 01 2005 @ 11:47 AM EDT
- Current events, calendar. - Authored by: gnuadam on Wednesday, June 01 2005 @ 10:58 AM EDT
- Date for other EU referenda - Authored by: Anonymous on Wednesday, June 01 2005 @ 12:46 PM EDT
- proper role of patents (not just software) - Authored by: Anonymous on Wednesday, June 01 2005 @ 05:02 PM EDT
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Authored by: Winter on Wednesday, June 01 2005 @ 08:39 AM EDT |
I am not sure whether it is included in the draft language. But the EP language
included the presentation of information.
There seem to be a number of obnoxious patents on the presentation of data in
graphs and the like.
Rob
---
Philosophy of Science assignment: "A theory that explains all the facts is bound
to be wrong because some of the facts will be wrong" (F.Crick)[ Reply to This | # ]
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Authored by: cinly on Wednesday, June 01 2005 @ 08:43 AM EDT |
In at least a few workshop, including the one I attended, the ambiguity on
FFII's definition is on "forces of nature". This term requires an
additional definition for it to be useful. As this word is being used in the
Groklaw's definition, I think it should be clarified.
One problem with UKPO overlooked is the fact that any definition they come out
with have to work in harmony with other field, i.e., how does "technical
contribution" applies to creating new moleculse, new method for mixing
concrete etc. Hence, having a definition too closely tailored to software is not
a very good idea.
---
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: eskild on Wednesday, June 01 2005 @ 08:50 AM EDT |
This construct looks odd to my non-english eyes
---
Eskild
Denmark[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 09:21 AM EDT |
I like the magic but unpatentable idea.
It does lead to at least one odd consequence, though. Imagine a control
interface for an appliance, perhaps a clothes dryer that is novel enough to be
patentable. If the control logic is implemented with electrical circuitry, then
the whole is patentable, but if it uses a bunch of wires and switches and puts
the novel logic into any sort of processor chip and software, it is not. This
could lead to some odd situations - the company that "discovers" the
patenable form might acquire a patent and shut out a company that (at around the
same time) started using the unpatentable form where the new idea is embedded in
software.
Perhaps there needs to be a Registry of Unpatentable Processes, which allows
companies to register software processes and protect them from someone acquiring
a non-software patent that implements the same creative process. If acquiring
such a non-patent was sufficiently easy, the free community might be able to use
it to foreclose actions by the proprietary community.
John Macdonald[ Reply to This | # ]
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Authored by: belzecue on Wednesday, June 01 2005 @ 09:22 AM EDT |
1. Applicability. Where a patent involves automated processing of information:
Exclusion: A patent application and issued patent may describe software;
however, where such description relates to storage, communication, manipulation,
or transformation of information in a software-controlled process then the
described part is not patentable.
---
If only it were that easy.
Cheers,
Belzecue
- dumbing down legal documents and letters since 1776.[ Reply to This | # ]
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Authored by: jesse on Wednesday, June 01 2005 @ 09:22 AM EDT |
ii. "Software" means any and all instruction sets for a physical
device or for networked physical devices but shall exclude all carriers or
physical devices. However, "software" shall include, inter alia, any
representation of software in any manipulable physical state of
a carrier or physical device.
Ummm..... what means
"manipulable physical state" ?
Does that mean "read" as in copy from a
read only memory? Reading, in and of itself, does nothing to the "physical
state". But wouldn't that allow a ROM (ie BIOS) to be patented simply because it
can't be altered???
I bring this up because some devices application
specific IC (aka ASIC) are created with foundation logic gates, then has a ROM
to define the final application (the connections between the logic gates). If
the ROM can be patented, then any program that can be put in a ROM could also be
patented.
I believe this is how most processor chips are patented. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 09:28 AM EDT |
Personally, I don't subscribe to the definition of software given at point (ii):
this refers to instruction sets on physical devices, setting the bar just above
hardware.
I find this language ambiguous: instruction sets could be those of the
processor, i.e. assembly opcodes.
Why simply not say that software is made up with coded algorithms, or formalized
ideas, and as such what is made of "the matter of dreams" is not
applicable for patents?
Do you share my vision?
Antonio[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 09:33 AM EDT |
On top of defining what can be patented and what cannot be patented, it could be
useful to affirm that a "pure software" (i.e. source code) cannot
infringe any software patent.
Even in the EU proposed directive, pure software is excluded from patentability
(a technical effect is required) - we can therefore infer that something non
patentable cannot infringe any patent.
[ Reply to This | # ]
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Authored by: johol on Wednesday, June 01 2005 @ 09:36 AM EDT |
One thing that I was wondering about while reading definition i of the
Groklaw definition
i. "Technical contribution"
means a substantial advance to the state of knowledge in a field of technology
made by a claimed invention considered as a whole.
was this
part
substantial advance to the state of knowledge in a field of
technology made by a claimed invention considered as a whole
What does
"substantial advance" mean? What is the ruler to use when you want to know if
someting "substantially advances the state of knowledge in a field of
technology"? I'm not saying that I'm capable of coming up with a better
wording, since this is very tricky business due to the built-in ambigiuty of the
English language. Perhaps the term "substantial advance" is already defined in
the European Patent Convention? If so, does anyone know what that
definition says? [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 09:38 AM EDT |
Could add words that say:
That neither writing, creating, publishing, or running any computer program can
ever be considered as infringing on any patent. Also, the input or output of
any computer program can never be considered as infringing on any patent.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 09:40 AM EDT |
This need more thought...
Think back to one of the first programable machines, A LOOM.
With its linked deck on cards it created patterns in the finished matrial.
Is the machine patentable? Yes
Is the method to read the cards? Yes
Is the pattern in the cards patentable? No
But the finished pattern should be TradeMarkable.
Now think of the great of the Great City CLocks with moving figurines.
Is the method to encode the movement figurines patentable?
Even if it only done by gears and stop chocks?
Is the clock's timing function patentable?
That is the problem with this debate... Encoding methods are instructions which
is software. It does not matter if the storeage method is craved in special
gears, hard steel plates, or states of electron or magenic flux.
[ Reply to This | # ]
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Authored by: beserker on Wednesday, June 01 2005 @ 10:08 AM EDT |
I like this definition a lot better than any of the others. Even so, it looks to
me like process patents would still provide a wide open back door. Design
automation tools are an interesting case. A patent on such a tool's underlying
design rules should protect against any implementation of those rules, including
a software implementation.
<CYNICAL RANT>
I also think that
no matter how good the wording is there will be plenty of whailing and gnashing
of teeth because somebody's buggy whip manufacturing empire will be
decimated. Politicians, being the noble are courageous beings that they are,
usually feel the need (i.e. its good PR) to ride in and make sure that everybody
is treated fairly.
</CYNICAL RANT>
There. I feel better
now. ---
"Outside of a dog, a book is man's best friend,
Inside of a dog, its too dark to read."
- Groucho Marx [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 10:15 AM EDT |
remember Lexmark and the whole problem over their printer cartridges. That was
hardware only, er "pure hardware" with no software. And the software
workaround, well the author got sued.
The problem is that Lexmark should never have been granted theirs in the first
place, regardless that it was non-software.
There are other examples - the famous DRM CD copy protection that was thwarted
by use of a felt tip pen. Should never have been allowed.
and then there are engines for automobiles, planes, ships and such. and
thousands of other entities.
it is no longer a question of "software only" patents. And it almost
brings back the question of "what exactly *IS* software anyhow?" but
more than that.
ROMs, ASICs, and other functionalities, like the clock one someone mentioned. If
you can take a hardware solution (meaning gears and motors) and reproduce that
with circuitry and software, then what are you left with?
and what of biology ? yes the functions of the human body, many functions can be
described in software, and various procedures handled with software (artificial
hearts, etc) and other medical issues and discoveries.
Do we start limiting which industries can be allowed "software
patents" in any form??
For example - a scientist comes up with a new life-saving device for use in the
O/R and emergency rooms. He's a doctor (MD/surgeon) who's spent his whole life
learning this stuff, and come up with this, his heart and soul into it. His
invention should be protected. But say there is too much of a software
component, then what? Do we make exceptions for certain industries because they
are too critical?
Do we then fall into a trap of which is and which is not too critical, and start
ebbing and flowing into the cracks of other things?
it gets worse. that's only the beginning. much worse.
What about internet routing protocols? There are proprietary ones, commercially.
But by very definition they are only software. So suddenly these are all
invalid, and you really think companies like Cisco (the largest internet company
in the world) is really going to give that up?
further what about people who spend their whole lives to develop a new
communications protocol (extended cell-phone roaming, etc - certainly
life-saving possibilities here), and want to get a return on their life-long
investment. But oops, its only software. so then what?
You can't copyright an algorithm or a protocol. or any of these things I've
mentioned. You can't trademark an idea, only the name, not the process.
I have only one response to all of this:
Abandon hope all ye who enter here.[ Reply to This | # ]
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Authored by: kb8rln on Wednesday, June 01 2005 @ 10:27 AM EDT |
I had a problem with a patent. I wrote a computer program that fingerprinted
radios call
XMIT_ID
without any knowedge of this patent. Never read any patent in my life. Here is
the
story.
I retaint a
lawyer. I was looking at a lawsuit from Boeing who own the patent
500510. Something that I have
made very little money on. Could cost me thosands of dollars, just in leagal
fees. I started writing back to the author asking what CLAIMS on the PATENT I
was using. He said all of it. First, I came back and said I do not sell any
hardware so how can you claim number X. He said because I told them how to
build it. I use a sound card build into a computer and a 9600 baud packet
connector build into most transceivers hook up together with a wire (Patent term
it called the WHEEL). The hardware was the wheel and could not be looked at
after that point.
Software was the only thing left. He was claimming over
broad that any computer program that can do this is part of this patent. I did
not even use his technique to look a fingerprints. He wrote back with 2 words,
"D*mm Attorneys". I was thinking the same thing.
I received another patent
complain about 6 months after the first on that said he own the patent on using
Fast Fourier
Transform
for fingerprinting radios. I ask him if he had any proof and he
said that is the only way you can do it. Just for the record I use fuzzy Logic.
So what do I think should be added to the law. Patent claims can not be
overly broad like computer program that does X. If someone independly come up
with something that does the same thing as a patent. You must prove before
going to court that the idea was stolen. If you can not the moving party must
pay the other attoneys fees. I still do not read patents and I should not have
too. You should be innocence until proven guilty. If not small bussinesses do
not stand a chance. All big companies need to do it say we will keep you in
court for 10 years. We will backrupt you and you can not do jack about it you
are right or not.
Enjoy,
Richard Rager
de kb8rln (Just a note this
ID in unique in the world for me)
--- Director Of Infrastructure
Technology (DOIT)
Really this is my Title so I not a Lawyer.
[ Reply to This | # ]
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Authored by: leopardi on Wednesday, June 01 2005 @ 10:34 AM EDT |
How well does the suggested Groklaw wording do at
prohibiting the patenting
of not just software, but
algorithms themselves.
I again drag
out my perennial example,
United States
Patent 6,859,816 Makino, et al. February 22, 2005,
(assignee: Sony
Corporation).
This seems to be a patent for a case of the
Fast Fourier
Transform.
Under Groklaw's suggested
wording, how much of this
patent survives as "patentable
subject matter" ? And why ?
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 10:36 AM EDT |
I think I can go with this.
You can patent the clothes drier, because it
dries clothes (which is a physical effect). Maybe it does it better, or more
environmentally-friendly, than before; possibly becuase it has a videocamera and
software to figure what kind of clothes it is drying.
But you can't patent
the software in it. The software has other uses; for example, being the
physics-realistic part in a kid's washday game.
The bit about 'information
recorded in the modifiable state' has to do with things like a CD-ROM. This has
in effect about 5,600,000,000 'switches', set and read by a laser. The CD-ROM
might well be patented, and the production process for it patented. But the list
of which switches are on, and which are off, can never be patented. [ Reply to This | # ]
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Authored by: danielpf on Wednesday, June 01 2005 @ 10:57 AM EDT |
The whole discussion seems to me on a shaky ground because the distinction
between physical device, patents and software is ultimately artificial.
Indeed, the three concepts can be reduced to information.
In fact what is protected with a traditional patent is the information about how
to organize, to program atoms in becoming a specific "device" which
executes a specific "function". The atoms themselves are irrelevant,
only the information about their function is important. So a traditional patent
may be seen as a program describing how to set up atoms such that they execute a
given function. The execution of this program is protected.
Instead of moving electrons in silicon, a traditional device moves atoms,
electrons, or sends photons. Computers and devices are fundamentally the same,
they both need natural forces and some kind of program to work as intended. The
only new feature of computers is that the program can be easily changed, but
nothing in principle prevents mechanical devices to follow different programs
too (remember the punched cards).
There are programmable machines able to built other machines. Then lots of
patents become identical to the program able to duplicate the device. The life
machinery has been just doing this for a long time, living devices can even
replicate themselves! This is why some people want to patent forms of living
material, because material devices and collections of macro-molecules are not
much different in their principle.
In conclusion it seems that one must face the fact that wanting to forbid
software patent is not fundamentally different from wanting to forbid patents
in general.
A way to satisfy both the FOSS and the traditional patent point of views may be
reached if one succeeds in quantifying the new information content of a new
invention with respect to previous ones. What is outrageous in many software
patents is that the new information content is very low. In contrast, it seems
natural that a highly complex and innovative program as a whole could deserve to
be protected for a limited time because the author by his/her effort brings
something really new to the world.
My proposition is therefore to allow software patents for programs which are
*substantially* innovative (as Visicalc was), not small pieces of software, or
trivial business methods. Most mathematical algorithms are small pieces of
software, so would not be protected. Slight improvements of already published
programs (say a patch to the Linux kernel, or a new program but performing a
similar function as a previous one) could not be patented, because the new
information content would not be high enough. The risk to use unknowingly a
patented program would also be low because only non-trivial programs would be
patented.
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 11:36 AM EDT |
The definition says: "Software" means any and all instruction sets for
a physical device or for networked physical devices but shall exclude all
carriers or physical devices.
'Instruction set' has a specific technical meaning in computing, it's the set of
instructions a particular processor understands. You'd never call any
particular program an instruction set, any more than you'd call a page of text
an alphabet.
Is there a better way of saying "a set of instructions" than this, to
avoid the ambiguity?
R
[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 11:56 AM EDT |
Any "invention" that consists solely of instructions to be carried
out, either by man or machine, shall not be patentable. If an
"invention" consists of a novel physical device and a set of
instructions by which either man or machine operates it, the set of instructions
by which the physical device is operated may not be protected by patent, only
the physical device itself.
There you go. No more software patents, no more business method patents, and it
covers the situation where people mix software with hardware in order to protect
the software.
Quite simply, you should only be able to protect the "what", not the
"how". Things that are not physical or need not be physical to be
used should not be patentable. If you want to protect your software, use
copyright. If you want to protect your business method, use trade secrets and
an NDA. Patents are there to protect physical inventions, things you can kick
with your foot, not abstract ideas. End of story.
Paul C.[ Reply to This | # ]
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Authored by: evbergen on Wednesday, June 01 2005 @ 12:03 PM EDT |
Let's try to test this language together on
1. a router, having two optical connections, and manipulating the light pulses
going in and out. Desired result: laser LEDs and phototransistors patentable,
router functions not patentable.
2. a microcontroller-controlled washing machine: order in which the wash is
turned at which speeds patentable, the software and description of that order
not patentable.
Note that in the 2nd example, it means that the software implementing the order
won't infringe, but any washing machine using the software to make the wash turn
in the patented speeds and directions, will.
We don't want that in routers; we don't want a router that uses the same
software, but that does have different information <-> light converters to
be patentable, because that would effectively mean that the patent would
effecively prevent the routing algoritm to be used in any router that sends the
same light pulses for the same received ones.
Cheers,
Emile.[ Reply to This | # ]
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Authored by: Simon G Best on Wednesday, June 01 2005 @ 12:25 PM EDT |
Wow! Groovy stuff!
Having attended one of
the workshops, I'm particularly interested in seeing how this definition
stands up to the UK Patent
Office's case studies. I've already printed out the definition and the case
studies, and had a quick run-through, but I'll be going through it again
properly later.
For anyone else wanting to play the workshop game at
home (but didn't attend any of the official workshops), the rules are
simple:-
Always assume that the 'claimed invention' in
the case study is new and non-obvious. This can't be emphasized enough
(especially when it can be pretty hard to believe in some cases). It's only
technicity that's under test. Oh, and each is new and non-obvious as a
whole.
Do not have enough time! In the
workshops, we didn't. If you want comparable results, bear in mind that we had
about an hour for testing four definitions with five case studies - twenty
combinations! You may also find it helpful to have someone from your local
patent office visiting you from time to time, to remind you how much time you
have left.
Do this exercise with five or six others, if
possible. Gather round a table, and have brief discussions as you proceed.
Ideally, you should have a mix of software developers and lawyers, with an
optional participant not in either camp. Oh, and the lawyers should generally
be in favour of software patents.
You can find all the
materials you need (in addition to the Groklaw definition in the article here)
on the UK
Patent Office website, from the page about the
workshops.
:-)
--- FOSS IS political. It's just that the
political establishment is out of touch and hasn't caught up. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 12:25 PM EDT |
After reading all these ideas, it has become obvious
to me that in this new and enlightened, hi-tech world
we live in today patents are low-tech, archaic,
only serve the wealthy, and have no place in a
"global" society. Best just to do away with patents
altogether.
[ Reply to This | # ]
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Authored by: PrecisionBlogger on Wednesday, June 01 2005 @ 12:28 PM EDT |
Given that SCO has apparently unsealed nothing, shouldn't they be held in
contempt at some point? Aren't they flouting a judge's clear order?
(I can't believe that SCO would be hurt by unsealing some of their documents. I
suspect that unsealing costs many legal hours and either SCO wants to avoid the
cost, or their capped lawfirm wants to avoid it.)
---
- Precision Blogger[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 01:35 PM EDT |
I like the distinction that software may be part of the description of the
patent, but the software as such in and of itself is not patentable, and that
the software portion of any patent is still protectable under copyright.
This means that for total protection of an invention, you would need to get both
a patent and a copyright. Considering that copyright exceeds patent life by a
considerable margin, this shouldn't be a problem.
However what about the case of the printer cartridge, where in order to get a
generic cartridge to work with a printer, some sort of code had to be included
in the replacement software, and the vendor of the replacement cartridge had
virtually copied a signifcant piece of code. True this is US law and the patent
definition is European law, but presumably the US could be imposed upon to
harmonize US patent law with European law. (I can always dream.) In any case
the point is, if I remembered properly, the case, as of this point, has been
decided on the side of the vendor making the replacement cartridges.
Completely leaving aside the question of whether or not this is a good thing,
the question I have is what sort of effect would this type of decision,
presumably in a court in Europe, have on this proposed definition of a patent.
IE, in order for me to use your device, I need to be able to interface with it.
If I am using your device, then obviously I am using your patent and presumably
paying royalties. Alternatively, I use your exact software, and interface it
with my device, that I developed on my own, and does not use your patent in any
way.
Is this an issue? [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 01:46 PM EDT |
This seems a good goal:
(Member States shall ensure that) the distribution and publication of
information, in whatever form, can never constitute direct or indirect
infringement of a patent.
So, why not just say this, flat out, in the patent language. Don't translate or
transform it. Just say it.
[ Reply to This | # ]
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Authored by: Nick Bridge on Wednesday, June 01 2005 @ 02:05 PM EDT |
I like it.
Clean and precise.
It leaves the other side to try to explain why ANY part of software should be
patentable.[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 03:55 PM EDT |
Anything I can do a commercially-significant quantity of in my back yard should
not be patentable.
I can't make a commercially-significant number of
anti-lock brakes for cars.
I can make enough software to power the world for
ever, and I can distribute it. [ Reply to This | # ]
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Authored by: Anonymous on Wednesday, June 01 2005 @ 04:59 PM EDT |
"What do you mean by software"
Something you write and publish. Plain and simple, no techno mumbojumbo.
Member States shall ensure, that granted patents do not limit or except the
rights of authors in accordance to TRIPs article 13, that patents do not
conflict with normal exploitation of data and information and do not prejudice
legitimate interests of authors, that publication, handling and distribution of
information, including loading and execution of computer programs and all
effects thereof, can never constitute a direct or indirect patent infringement.
A legitimate interest of a software author is of course that he or his customers
can and are allowed to run the program. And since the controlling (use), as
such, of an existing machine never can be an invention (the machine as such can
be), even if it is innovative, the effects of running (last centence of above
paragraph) a program can never infringe[ Reply to This | # ]
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Authored by: so23 on Wednesday, June 01 2005 @ 07:14 PM EDT |
Perhaps something along the following lines.
While the
groklaw community is happy to offer advice as to how to best define `technical
effect', this should not be taken as an endorsement of the patent system. Indeed
most groklaw participants believe that the patent system, even as it applies to
non-software, is in need of serious reform, and many believe that the world
would be a better place if patents were abolished
altogether.
Personally I think patent law is sheer folly
and want nothing to do with it. I would not want to be associated in any way
with anything that could be viewed as an endorsement of a patent system, even a
reformed one. My view is that all patents should be abolished.
I am enough
of a realist to know that this is not likely to happen in the near future, and
have no objection to those who strive to moderate the system to ameliorate some
of the damage it causes. However I would like it made clear to those who support
patents that it isn't just a matter of tinkering with the wording and the
problem will be fixed. Many of us believe the whole system is so deeply flawed
that it should be completely scrapped.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 02 2005 @ 05:42 AM EDT |
I think the problem lies in the word "software". Its too ill-defined. Others
have noted the problem of distinguishing between a hard-wired controller (e.g an
elevator controlled by relay logic) and a programmable microcontroller doing the
same job. An even bigger problem comes from FPGAs (Field Programmable Gate
Arrays). These devices are widely used in hardware prototyping and are also
finding their way into products. You define your functionality as a set of
connections between logic gates, exactly as for hardware. However the
connections in an FPGA are created by loading the gate array into its internal
memory. Does this gate array constitute "software"? The question is not
trivial.
Therefore I think that the solution is to get rid of the word
"software" and concentrate instead on "information". In some recent physics
"information" is starting to act like a third kind of constituent of the
universe, along with matter and energy. For example the problem of Maxwell's
Demon was solved by looking at the destruction of information. Hence it seems
likely that if we distinguish between matter, energy and information then we
will be on solid ground.
Hence I would like to propose the following
definition:
Patentable inventions are limited to the
arrangement or manipulation of matter and energy. A patent may, to the extent
needed to explain the invention claimed, include a description of the
derivation, arrangement, manipulation and/or use of information. However this
description does not create patent protection for the described derivation,
arrangement, manipulation and/or use of information.
Thinking
back to a couple of the examples from the Patent Office workshops, I think it
would be applied like this:
- One of the example inventions was for a
trucking company that monitored where trucks were by satellite and then
displayed this information back at base and used it as input to a scheduling
system. The transponders themselves, the fact that they communicated via radio
with satellites, and their placement on the trucks would all be patentable.
However the derivation of information from the radio signals, or its
manipulation and arrangement on a map and elsewhere in the system would not be
patentable.
- Another example was a computer controlled traffic light system.
Again the sensors and lights themselves are patentable, but the manipulation of
information between the two is not. Neither is the idea of transmitting
information via a particular arrangement of coloured lights.
- An example of
my own (I think): a new method for treating rubber through a precisely timed
series of treatments at a precise set of temperatures. The application of
specific treatments is a manipulation of matter and energy, and so would be
patentable. The software to perform this treatment would not, itself, be
patentable. However the method of treating rubber would be. Therefore anyone
who treated rubber in this way would be in violation of the patent whether their
machines were controlled by a computer or not.
Suppose in this example that
the treatment depends on some kind of feedback loop: say the rubber must be
heated until it changes colour. The principle of heating until a colour change
occurs is a manipulation of matter and energy and would therefore be patentable.
Hence the use of a colourimiter to detect the change would be patentable, as
would its connection to the computer and the fact that heating should stop at
that point. However the patent might also say that the colour information is
transmitted to the computer, checked against a reference point stored there, and
hence a further signal is sent to a relay to turn off the heater. This is
purely concerned with the arrangement and manipulation of information and would
therefore not be patentable.
So: does anyone else think that this
could be a solution?
Paul. [ Reply to This | # ]
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Authored by: Wol on Thursday, June 02 2005 @ 05:46 AM EDT |
I don't know how this would work out, but it's obvious that any "scientific
model" should not be patentable. By definition, it doesn't "work"
as per the patent definition of "work", seeing as it's a description
of how we think the world behaves.
Software that models how something works (eg the ABS in a game that someone
mentioned) clearly is not patentable.
Software that controls a real ABS implementation may be patentable.
While the distinction may not be clearcut, modelling and implementing are
mutually exclusive, and anything on the modelling side should not be
patentable.
Cheers,
Wol[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 02 2005 @ 07:30 AM EDT |
Just to play devils advocate and because I have expressed the view that the EPC
does not need modifying :)
>Groaklaw:
>One might quite reasonably ask: "Why not simply say 'you can't patent
software'?" There are a number of reasons, such as:
>(1) You have to define what is and is not software.
Software is not hardware, hardware is matter.
>(2) A simple declaration "no patents on software" could be
interpreted narrowly
What the software patents issue has proved is that it is the intention on the
European Patent Office, and perhaps general perceptions.
The words 'as such' in another article where siezed upon, and expanded to
reverse the meaning of the EPC with regard to software.
>(3) To guard against the de facto software patent
All patents have to be implemented in order to gain a patent.
If it is implemented in software it is not a valid patent.
>(4) To make clear, because of EPC/52, that "no software patents"
does not mean that non-informational computing inventions are also
non-patentable.
Non-informational is an oxymoron or does someone have an example ?
http://dictionary.reference.com/search?q=computing
1. To determine by mathematics, especially by numerical methods
2. To determine by the use of a computer.
>(5) So that the definition would be sufficiently explanatory that all
concerned, both laypersons and experts
Software is immaterial as in not matter and therefore non-patentable.
>(6) To invite debate on whether software is, in fact, information and if so,
unpatentable.
Information is not matter. In fact in computing data is often not regarded as
informatiomn, as information has meaning, but data does not.
http://dictionary.reference.com/search?r=2&q=immaterial
2. Having no material body or form.
Clearly software gets implemented as electrons or photons or other forms of
generic matter/energy and it is the meaning attributed by human beings that
gives them significance. Software is not matter/energy (physics).
mass = matter = energy e(nergy)=m(ass)c(speed of light)^2
A technical contribution in the Groklaw definition is just a reiteration of the
'inventivness step' and therefore redundant
My experience with software patents and life in general is that the simpler and
more explicit the definition the less opportunity for distortion.
The Groklaw definition is too complex too specific and too redundant.
Something is or isn't matter/energy. The immutable natural laws of physics
determine the distinction. Or if you prefer, the distinction between and idea
and the implementation of an idea. (Don't tell the USPTO, they have taken to
granting patents for potential solutions!)
But we need to back away from the concept of intellectual property, and that
taking form the public domain and privatising is desirable.
The public domain, is the shared resource from which we all build, privatise it
and you impoverish us all, for the enrichment of a few.
David Tomlinson
[ Reply to This | # ]
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Authored by: Wesley_Parish on Thursday, June 02 2005 @ 09:29 AM EDT |
I usually find in this sort of case, one needs to go
back to the original
intent of the concept in discussion,
namely patents:
Patent
Definition
A patent for an invention is a grant of a
property right
by the government to the inventor. Patents are granted for
any new and useful industrial or technical process ,
machine, manufacture,
or chemical composition of matter,
or any new useful improvement thereof. The
patent is
granted upon the new machine, manufacture, etc., and not
upon
the idea or suggestion of the new machine. A complete
description of the
actual machine or other subject matter
for which a patent is sought is
required. The term of a
patent is 20 years from the date on which the
application
for the patent was filed. The patent gives the inventor
the
right to exclude others from making, using, offering
for sale, or selling the
invention in the United States or
importing the invention into the United
States. courtesy of the
State Library of Iowa.
And:
Rights granted and rights not granted
A modern
patent provides the right to exclude others from
making, using, selling,
offering for sale, or importing
the patented invention. Generally, patents
are enforced
only through private actions; namely, through civil
lawsuits
or licensing agreements. Governments typically
reserve the right to suspend
or cancel a patent at will.
An application for a patent
(other than a design patent)
must explain how to practice (i.e., make and/or
use) the
invention(s) and must also include "claims" that
particularly
point out the invention(s) and will define
the protection conferred to the
owner of the patent, once
granted. Generally, the exclusive rights are
limited to
the invention(s) defined by the patent's claims. Patent
claims
are typically of the form of a long sentence, e.g.,
"An apparatus for
catching mice comprising, a base member
for placement on a flat surface, a
spring member...", "A
chemical for cleaning windows comprised of 10-15%
ammonia, ...", "A method for computing future life
expectancies, the method
comprising gathering personal
data including X, Y, Z, ...", etc.
Claim language formats and practices vary widely between
different
countries. Each word of a claim is considered an
"element" or "limitation" of
the claim. In order to
exclude someone from using your invention in a court
you
will have to demonstrate to the court that what the other
person is
using is identical to the claimed invention.
(Note, while the United States
is moving towards more
rigid claim interpretations and generally, issued
patents
have a large number of claims, "equivalents" of claim
elements or
limitations may be permitted in determining
infringement. The practice
elsewhere in the world
differs.) , courtesy of dictionary.LaborLawTalk.com
a>
Well, that's the original concept - note the words
"The patent is granted upon the new machine,
manufacture, etc., and not
upon the idea or suggestion of
the new machine. A complete description of the
actual
machine or other subject matter for which a patent is
sought is
required."
I strongly suspect that most software patents could
be
easily overturned if that was taken seriously, and
to
quote myself (I must love the sound of my own
voice,
no?)
Patent law provides for the object to be patented, to be
presented in prototype form, and its details divulged so
that anyone with
an inkling of technical know-how can
reproduce it. But patent law also
provides that anything
worth patenting must be non-trivial.
Now software patent attorneys apparently are satisfied
with submitting
patent applications without the object of
the patent, the software, to be
presented in prototype
form, ie, in full source code form, and its details so
divulged together with all and any relevant pieces of
documentation.
In other words, software patent attorneys have
done the
otherwise unthinkable - they have NOT contested the claim
that
software patents are trivial and
trivially-implementable, because they are
seeking
protection on the bare idea without reference to any
implementation. If their only evidence is the idea that
such-and-such, and
they are seeking protection on the very
idea itself and not on any specific
implementation, they
must believe that any specific implementation is
trivial.
And if it is trivial to implement software on the basic
idea, then it is not worthy of any protection whatsoever,
because it adds
nothing to industry.
Perhaps the Software Patent
Rewording might take that
into consideration? Any patent claim that is
neither
defined nor described in terms that a programmer would
ordinarily
use to define and describe software - ie,
source code or pseudo-code that
anyone with a year of
Computer Science 101 could turn into a working product,
is
not to be taken seriously. Instead, said patent claimant
is to be
taken into protective custody by the local
constabulary:
Legal Dictionary
Fraud
Any act, expression,
omission, or concealment calculated
to deceive another to his or her
disadvantage;
specif A misrepresentation or concealment with
reference to some fact material to a transaction that is
made with knowledge
of its falsity or in reckless
disregard of its truth or falsity and with the
intent to
deceive another and that is reasonably relied on by the
other
who is injured thereby , courtesy of Answers.com
and F
To
satisfy the first element of common law
fraud, plaintiff must show that
defendant made one or more
misrepresentations or omissions concerning a
material
fact. A representation is material if it is likely to
induce a
reasonable person to act or refrain from
acting.
If the
defendant misstated or withheld any material facts,
then the element is
satisfied.
'Nuff sed?
Wesley Parish
--- finagement: The Vampire's veins and Pacific torturers stretching back
through his own season. Well, cutting like a child on one of these states of
view, I duck [ Reply to This | # ]
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Authored by: hawk on Thursday, June 02 2005 @ 09:30 AM EDT |
Rather than ensure (or hope) that pure software can be made unpatentable, unless
used in physical products, it may be easier to exempt software from patents
entirely.
This may be much easier to do in practice, and may solve the problem about
patents already granted. Since these patents would remain, and since the laws
always said that pure software can't be patented, no one could argue that they
needed to be compensated.
So how about passing a law in this spirit: "a product in a machine-readable
form is exempt from patent obligations."
In my opinion the U.S. system have an advantage over the European system: the
validity of a patent is deferred to the courts. I think relying on a fair
judgement by an organization like USPTO, EPO, etc. is a poor choice.
Of course, using the courts have disadvantages, but I still think it is
inherently "right".
PS: I always thought the legislators wanted to allow patents on pure software.
Most of the arguments, e.g. "we need to grow the industry" and
"income is needed to drive inovation", appears to point in this
direction.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 02 2005 @ 09:40 AM EDT |
As I understand it the above definition still attempts to make an illogical
seperation between software and not software.
Take, for example, an invention that is a DSP algorithm and it's implementation:
it can be implemented on a general purpose DSP processor as software. It can
also be fully implemented in dedicated custom hardware (a unique arrangement of
logic gates) that cannot be used for any other purpose.
I believe that the new wording supplied here is intended to make it possible to
patent the hardware implementation without allowing the software implementation
to be patented, but this does not withstand any kind of analysis and remain
consistant with itself.
Assume that in both cases the only "innovative" part is the algorithm
itself (assume even that the general purpose DSP processor that will run the
software, and the dedicated custom hardware will be manufactured using the same
manufacturing technology).
In either case the the "innovative" part of our invention is embodied
only in the design information, and in both cases only in the functional design
(either the source code for the software implementation, or the logic network or
some other representation for the hardware implementation). Indeed given a
computer or compiler that receives it's programming information as a logic
network the software design and the hardware design are indistinguishable from
one another as far as determining whether one is hardware and one software.
Actually the previous statement is insufficient since there are hardware design
tools available today that will take C/C++ description of an algorithm and,
given information regarding the manufacturing technology to be used, synthesize
the physical design to realise that algorithm.
Therefore we can see there are no properties that are exclusive to either the
software design or the hardware design to say that they should be treated
differently as regards patents.
The only difference between the two is the decision of whether to implement as
hardware, or whether to implement as software.
We know that implenting as software is not an "innovative" step.
Whilst there might be compilers out there that do have patents on them, the idea
to transform the design of the software to instructions for execution on a
particular process is not of itself an innovative step.
Also, given that the process of taking a design and realising it as hardware is
not itself an innovative step, (this is a statement of fact-- although there
might be patents out there regarding particular methods of hardware synthesis,
just having the idea that you can perform this transformation is not innovative)
we can see that the decision to implement this algorithm in hardware does not of
itself make our invention any more patentable than the software implmentation of
our invention.
My conclusion: Since algorithms are not patentable, and the software design and
the hardware design are just different notations for expressing the same
algorithm we can see that neither of them should be patentable.
As far as I can see the only thing that should be patentable here is if there is
some new principle in the manufacturing process that is used to realise either
of the devices that will implement that the algorithm.
Note that this does not maintain the status-quo, that is one of the stated aims
of the rewording (and which I believe is impossible to achieve). I think the
whole idea of what is patentable and what is not needs to be looked at again,
without necessarily focusing on this idea of software and not software.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, June 02 2005 @ 12:10 PM EDT |
I'm seriously starting to consider that proper wording may be totally
impossible.
And given todays technologies it just may be that way. Another method may have
to be devised.
for example - in the case of software-only inventions:
a guy spends his whole life working alone on an software product, his lifes
work. Shouldn't there be a way to protect it? Yes copyright is wonderful, and
trademarks are good, but nothing protects his work in its essence. thats one of
the reasons patents were created in the first place.
biological processes - can be defined in software, so new treatments being
designed with these technologies would be totally unprotected.
ASICs and other things - these are software in ROM - so to speak. how about
chips that can re-write themselves? these technically are just software (though
they're not) - so these would not be protected.
emerging technologies - like above with chips that rewrite themselves. areas
like "wetware" which are not really here yet.
the lines between software and hardware are blurred, and it will just get worse.
today we can patent hardware devices, but today and tomorrow and later much of
these devices could be defined using just software. so does that protect the
patent or waive it?
I know if I came up with something new and revolutionary (like a communications
protocol) I'd want it protected. But by barring software-only patents this is
impossible.
and if we allow the individual to do it, but not companies (perhaps this is an
answer) - saying companies cannot hold rights to the patents of the inventors
that work there.
but then you fall into almost the same "arms race" trap we are now.
instead of companies suing each other, you now have people. so the difference is
almost nil.
and then why shouldnt the company gain the benefits if the people are using
their equipment, time and resources to make the invention?
no matter how you slice it, no matter what wording you use, no matter what
restrictions you place on it I believe it is IMPOSSIBLE to come up with a
workable solution.
if you allow software only patents, the flood gates get opened.
if you dont allow them, then inventors are not inticed because they are not
protected.
and then you have the case of honest replication of inventions, which does
happen. what then? the guy before you gets everything because he was first.
do you start creating a tiered structure of invention? ok the first guy gets 90%
the next guy gets 10%, and over time this changes? a third guy comes along and
you shift the percentages again? its too hard to administrate and people will
always fight.
I think we're on the verge of a social revolution. actually.
how about this (or something like it) -
all software (and related) inventions cannot be patented, but are immediately
covered by a modified GPL ? like a "pay per use" GPL?
gdamn thats funny - "pay per view" software. its hillarious! ;)
(inside joke caused by remembering the whole DIVX fiasco)[ Reply to This | # ]
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Authored by: Juggler9 on Friday, June 03 2005 @ 01:39 AM EDT |
1. Allow software patents but they're only good for 5 years.
2. Software patents may only be registered by and issued to people, not
corporations.
3. If the patent is assigned/sold to another party (actual person or company or
corporation) then it is only good for 1/2 of the remaining duration (i.e. 2-1/2
years on a freshly-issued patent). Each assignment/sale reduces the enforcement
time by 1/2.
This would nullify corporate patent arsenels as well as make it unattractive to
companies simply buying and selling patents. You buy a patent and then sell
it, it's only worth 25% of its initial value. Not worth doing it.
If the person/people who developed it want to use it...fine. Otherwise it
quickly moves towards the public domain.
Comments?[ Reply to This | # ]
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Authored by: marbux on Friday, June 03 2005 @ 12:36 PM EDT |
Grok
law's high definition on software patents - ZDNet UK
--- Retired
lawyer [ Reply to This | # ]
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Authored by: Anonymous on Saturday, June 04 2005 @ 06:19 PM EDT |
Hartmut Pilch made a nice presentation at the conference in Brussels:
http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/mgp/
Computer-program = computer-implemented solution[ Reply to This | # ]
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Authored by: BbMaj7 on Sunday, June 05 2005 @ 01:55 AM EDT |
Stop thinking so digitally. Digital is only a phase technology is going
through.
As a researcher in the field of information theory and data
compression I can tell you that information need not be discrete. Certainly for
many common communication mechanisms of today discrete states are used; but we
should not fall into the trap of believing this will always be the case. Indeed
we are here crafting a definition which should be timeless.
The work of
Shannon (and even those before him) shows that any unpredictable event carries
information. Indeed the subtle variations of (non-discrete) voltage carry far
more information than the discrete, quantized states which might be extracted by
a typical communications device of today.
Although the context is
software patents and software is (currently) a discrete phenomenon, the
definition of information should not be so profoundly and incorrectly warped as
to corrupt other related areas.
By contrast, IMO the definition of
carrier correctly identifies the manner by which information is carried
- an intentional manipulation of a physical property. So why is the definition
of information made so substantially different?
I would suggest
simply removing the word 'discrete' (twice) from definition
(v).
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