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A Groklaw Suggestion on SW Patent Wording
Wednesday, June 01 2005 @ 07:53 AM EDT

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.



  


A Groklaw Suggestion on SW Patent Wording | 236 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
A Groklaw Suggestion on SW Patent Wording
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 | # ]

A Groklaw Suggestion on SW Patent Wording
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 | # ]

Corrections (if any) here!
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 | # ]

OT Here please!
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 | # ]

You forgot the presentation of information
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 | # ]

"Forces of Nature" problem + definition too software oriented
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 | # ]

'in at least several '
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 | # ]

unpatentable magic
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 | # ]

"Spare me your legal mumbo jumbo!"
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 | # ]

    question about "manipulable physical state"
    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 | # ]

    Definition of "Software".
    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 | # ]

    A Groklaw Suggestion on SW Patent Wording
    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 | # ]

    Substantial advance?
    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 | # ]

    A Groklaw Suggestion on SW Patent Wording
    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 | # ]

    A Groklaw Suggestion on SW Patent Wording
    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 | # ]

    A Groklaw Suggestion on SW Patent Wording
    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 | # ]

    the real problem is its not black and white - its now various shades of grey
    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 | # ]

    Real world example of the problem.
    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 | # ]

    Test case: US Patent 6,859,816
    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 | # ]

    A Groklaw Suggestion on SW Patent Wording
    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 | # ]

    What is a patent if not a kind of program?
    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 | # ]

    Slightly odd wording with "instruction set"
    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 | # ]

      Most simple wording
      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 | # ]

      A litmus test
      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 | # ]

      Testing Against the Case Studies?
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      When will SCO be In Contempt for failing to unseal?
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      Why not just say it?
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      What is software
      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 | # ]

      Please consider adding a disclaimer ...
      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 | # ]

      Get rid of the word "software"
      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 | # ]

      Models and Reality
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      Reasoning why
      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

      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 | # ]

      Alternative: make "software as such" exempt from patents
      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 | # ]

      Still missing the point (I think)
      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 | # ]

      proper wording may be impossible
      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 | # ]

      How about this?
      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 | # ]

      Article about the Groklaw definition in ZDNet UK
      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 | # ]

      A Groklaw Suggestion on SW Patent Wording
      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 | # ]

      Information need not be discrete
      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).

      [ Reply to This | # ]

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