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Patents Government The Courts News

UK High Court Allows Software Patent Claims 125

Posted by kdawson
from the there-goes-the-industry dept.
An anonymous reader tips us to a note up on the IPKat blog, written by one of the four law-professor types behind that venture. The British High Court has ruled on appeal that the UK Patent Office must not reject software patent applications out of hand, as it has been doing for some time now. "In a surprising (to this Kat at least) turn of events, the Honourable Mr Justice Kitchin has ruled today that the current UK Patent Office practice of flatly rejecting patent claims to computer program products is wrong... Kitchin J found that the appeals should be allowed. Each application concerned a computer related invention where the examiner had allowed claims to, in effect, a method performed by running a suitably programmed computer and to a computer programmed to carry out the method... The cases were remitted to the [UK Intellectual Property Office] for further consideration in light of the judgment."
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UK High Court Allows Software Patent Claims

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  • I have to wonder... (Score:5, Interesting)

    by erroneus (253617) on Saturday January 26, 2008 @09:59PM (#22197410) Homepage
    ...who paid for this and how much did it cost?
  • by Jugalator (259273) on Saturday January 26, 2008 @10:38PM (#22197594) Journal
    "This will spur innovation in unprecedented ways in the coming years in the UK!"

    I would be able to say that if, with this change, the patent system would be improved to further function as intended in... Uhh, 1474 [wikipedia.org]. Only more efficiently.

    The period of protection was back then 10 years to protect the profit from new innovations, so inventors didn't get ripped off immediately, in turn keeping them interested in innovating. A great idea! Really, I think patents are in general a great idea, no sarcasm involved. They were then released after 10 years, fairly early at the time of technological evolution back then, so that it also didn't halt competition and innovations that were based on it. You also needed to have the product out. Because otherwise, there's not much to protect, you know? People back then didn't think mere ideas should be patentable.

    Now, two main things seem to have changed. First, patents are now in effect for 20 years. And you can patent stuff before products are out and in use. Actually, you can patent without even planning to innovate anything! This of course has very harmful effects for innovation, and forms the breeding ground for businesses exploiting this as their business model, suing others for infringing on their oh-so-valuable patents.

    As for the extended lifetime, it would still work out fairly well if this interesting graph [wikipedia.org] just wasn't in effect. (note: that graph is logarithmic; it's actually an exponential rate) Unfortunately for our patent situation, but fortunately for us living in this interesting day and age, history itself has proven it is. We don't even need to speculate, because it's historical evidence, not about anything that may happen in the future. The facts here are that we know which key events have happened in history (we know if something is a key event or not by looking at what the product of the paradigm shift was) and when they did, and that's pretty much all we need to see patent lifetime extensions are the least we have needed.

    So, what I think must be done to restore patents to a working state again would be two main things:

    1. Once again, like a long time ago, we should only be able to patent what's released, or possibly (in fear of day 1 patent hijacking after insider leaks) some duration less than e.g. a year in advance, but then the company will immediately have the patent expire if this goal is not fulfilled, along with having a hefty penalty associated with it, possibly a percentage of a company's revenue for some duration X (for an example, how about X being the time in advance the patent was granted?). So the more a company would "guess" and just throw things out without being sure of themselves, the greater risk of real losses they would run. They would now be forced to weigh the risk against the benefit. If they definitely have something worked on and are sure of themselves, sure, they could then submit the application, no special risks involved. Because they would be using the system as intented. I'm not sure if a patent should be allowed to be cancelled with no penalty, because that could be used to stall competition. Maybe that a project might not bear fruit and getting abandoned would have to be a risk a company submitting quite early patents would simply have to take.

    2. Second, we need to adjust patent lifetimes to the accelerating rate of paradigm shifts in order to not risk slowing them down. This risk should logically increase the further into the future we get. The doubled patent lifetime since 1474 should probably instead have been halved by now. The adjustment was made in the opposite direction as demaned by society and rate of innovations. The lifetime may also need to be adapted to various business needs. For example, computer software is often considered old in 5 years. Within that timeframe, even Microsoft will have had time to develop Windows Vista, including the project reboot in between PDC 2003 and Beta 1, so that's not saying little.
  • by yakumo.unr (833476) on Saturday January 26, 2008 @10:55PM (#22197656) Homepage
    If I could I would certainly mod up your post, I don't really see why you'd post that Anonymously though.

    Sadly there isn't any real way to compensate for the years of legal knowledge, training, experience required first.

    Perhaps there should be some kind of requirement for a 'young' specialist advisement team on modern technological issues or something. Though the mere suggestion is probably bordering on ageism. I certainly have always felt that someone in tune with the issues at hand should be presiding on them, and in cases such as this that will mean leaning toward the younger generation.

    I don't mean to be offending any 60, 70 year old I.T. geniuses reading Slashdot, or anywhere, but you must admit you are in the minority.

  • by harlows_monkeys (106428) on Saturday January 26, 2008 @11:23PM (#22197768) Homepage

    I was under the assumption that software patents in the EU were not valid

    It's more complicated than that. Article 52 of the European Patent Convention excludes, among other things, "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers ". (emphasis added)

    However, it also says of those exclusions, "The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such ". (emphasis added).

    Those last two little words, "as such", are a heck of a big loophole. You could drive a truck through it. And if you were a patent attorney, you could drive a software patent through it, and many have. The courts in Europe are all over the map in trying to figure out what the hell "as such" means.

    Wikipedia has a pretty good article on this [wikipedia.org]. It's very confusing, but that is not the fault of the article. It is the fault of "as such" and the confusing attempts of the courts and others to figure out what it means.

    There's also a pretty good article there on UK software patents [wikipedia.org], but it hasn't been updated to reflect this latest development.

  • by webmaster404 (1148909) on Sunday January 27, 2008 @12:07AM (#22197946)
    Hasn't anyone noticed how (us programmers) refer to programming as "writing" software not "inventing" software? Or how we "write" code not "invent" code? Software shouldn't be patented much as books aren't, software builds on each other much as books do.
  • by Shados (741919) on Sunday January 27, 2008 @12:32AM (#22198080)
    You're writing software the same way a construction worker builds a house, but the software architect, the computer scientists (the ones that actually do computer science, not code writers...), especially thse with PhDs, and such, most definately consider their work research and development, and the result is as much an invention (it the way it gets discovered, and the process to get there) as someone who invent a new medecine or a new hardware technology.

    That doesn't mean that it should be patentable, because there are fundamental differences in what the invention actually is... But when I spend months (or years!) researching and trying different approaches, studying results of hypothesis that take thousand of hours to get, and it takes just as long before we have an "engine" (that in the end, is only a few douzan thousands of lines long) that we can finally use in an actual product, it sure as many properties of an "invention".

    Note: I'm mostly playing devil's advocate, as I am against software patent, but for different reasons, as I definately disagree with your assertion.
  • Re:Well ... (Score:3, Interesting)

    by liquidpele (663430) on Sunday January 27, 2008 @01:01AM (#22198176) Journal
    Try to write a software program that does something cool, and then start a bussiness.
    I dare you.

    Software patents make big companies like IBM, Microsoft, Apple, etc almost immune since they can hold different patents against each other, but for small businesses, they only create a barrier to entry into the market, which hurts everyone and slows down innovation a lot. Why does it slow innovation if the big companies can still make stuff? Because they already made stuff, and they're getting money for it. Why would they change anything if it's profitable the way it is?
  • by ContractualObligatio (850987) on Sunday January 27, 2008 @01:04AM (#22198194)
    It's just basic English. Writing code describes the act of programming, simple as that. If you are also inventing e.g. a new algorithm, great, but you could instead be maintaining code, optimising code, porting code, etc.

    If I wrote a new text editor, I'd own the copyright to it, but imagine the reaction I'd get if I claimed I'd invented text editing? (insert Al Gore / internet joke here)
  • by Anonymous Coward on Sunday January 27, 2008 @01:16AM (#22198238)
    Agreed, I think a lot of people are missing the point here. The court was NOT ruling on whether the substance of the claim was patentable. They were ruling on whether the FORM was patentable. This essentially overturns Aerootel/Macrossan back to Fujitsu which was very much on substance over form.

    In simple terms, it doesn't matter if you start your claim "A method comprising x, Y, Z", or "An apparatus comprising X, Y, Z" or "A computer program comprising X, Y, Z".

    It's the X, Y and Z that matters not the form of claim.
  • by Anonymous Coward on Sunday January 27, 2008 @06:14AM (#22199106)
    And only if a complete build environment with nonobfuscated code in a vmware bubble is distributed along with the patent application. After the patent expires the source code enters the public domain. Otherwise, no patent protection and no, copyright should not apply to source code anymore than it does to any other mathematical proof.

    Can I get a copyright on 2+2=4? No, that would be rejected out of hand, every mathmatical process is the same, just at difference scales, including source code.
  • Re:sad news (Score:1, Interesting)

    by Anonymous Coward on Sunday January 27, 2008 @06:16AM (#22199112)
    Bad news for the software industry in England and Wales, not for the software industry in Scotland and Northern Ireland. The strange thing about the uk is that some bodies are 'british', most are not. So whilst the patent office is UK-wide, the courts and legal systems obviously are not.
    I assume (although the blog is based in england so it doesnt clarify) that this is the English High Court of Justice, http://en.wikipedia.org/wiki/High_Court_of_Justice [wikipedia.org], not the Scottish High Court of Justiciary, http://en.wikipedia.org/wiki/High_Court_of_Justiciary [wikipedia.org]. Thus we end up in a situation where a law is badly interpreted in England leading to a practice being illegal in England and Wales but legal in Scotland and, presumably, Northern Ireland.
    To put this in a US context, imagine state law was the highest authority and there was no Federal law. Imagine software patents were legal in all US states except California, where innovation ran riot.
    I look forward to the day when innovation is illegal in 50% of the UK and legal in the other 50% ;-)
  • by WampagingWabbits (627551) on Sunday January 27, 2008 @09:04AM (#22199604)
    A judge with probably a superficial understanding of software, gets to make a technical decision that contradicts the vast majority of software experts.

    It's not a legal decision, its a technical judgment of what really constitutes writing software. Writing software should be treated the same way as writing novels. Certainly imagination is involved, but in the plot, and ideas, and not the process of writing. Think what would happen if the plots of novels could be patented: how soon it would cripple the publishing industry? Publishing houses would prevent other authors from copying their plots. Companies would form just to generate new plots in the hope of suing some successful author whose plot bears a faint resemblance to one of their own.

    Actually this scenario bears an uncanny resemblance to the current US software industry, with software patent trolls beginning to grind the industry there to a halt.

    So please Judges, don't stray outside your field of competence - just ask some programming experts what they think of software patents!

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