EU Software Patents Directive: Comments? 32
Master Of Ninja writes "The EU has recently published a directive on software patents. Now the UK patent office wants comments on the draft directive, and specifically how they relate to the conclusions of a UK consultation on software patents. The patent office has set up a page detailing the work of the EU Directive and their stance on it. I also received an email today (Note -- this email below) asking for comments on this topic (which I will post here, as it is not on the website, and as it is in everyone's favourite .doc and .pdf formats).
EUROPEAN COMMISSION PROPOSAL FOR A DIRECTIVE ON THE PATENTABILITY OF COMPUTER-IMPLEMENTED INVENTIONS
In March last year the Government published its conclusions on whether patents should be granted for computer software or ways of doing business, following a consultation exercise. The central conclusion was "to reaffirm the principle that patents are for technological innovations. Software should not be patentable where there is no technological innovation, and technological innovations should not cease to be patentable merely because the innovation lies in software." But an urgent need to clarify the law was identified. Ways of doing business should remain unpatentable. The Government's conclusions are available at http://www.patent.gov.uk/about/consultations/concl usions.htm
Since then the Government has been pressing the case for action at European level, and last month the European Commission published its long-awaited proposal for a directive, available at http://europa.eu.int/comm/internal_market/en/indpr op/02-277.htm
The Patent Office invites views on how far the proposal for a directive meets the objectives set out in the Government's conclusions. In particular, we would welcome comments on:
whether the proposal is clear;
whether it deals clearly and satisfactorily with computer-implemented business methods where the inventive step is in the business method;
the treatment of the form of claim, in relation in particular to claims for programs.
We would welcome comments by Friday 7 June. These should be emailed to policy@patent.gov.uk or posted to:
Robin Webb
Room 3 B 40
The Patent Office
Concept House
Cardiff Road
Newport
NP10 8QQ
The directive, if enforced, will become "law" throughout the EU, so here's a chance to influence how software patents are enforced in an area covering hundreds of millions of people. The comments should be sent to policy@patent.gov.uk as it says in the letter. Hopefully there will be someone wanting to comment on this since the last time the UK government wanted advice on open source software, only 7 comments were put in. Flamers and trollers need not apply."
Won't change anything... (Score:3, Informative)
"Many of the responses supporting a more restrictive approach than at present [...]. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper."
So, even if 90% of the comment are AGAINST software patent, it doesn't seems to really trouble the commission.
So much for the democracy.
Why would it be different here ?
Re:Won't change anything... (Score:1)
>software patent, it doesn't seems to really
>trouble the commission.
90% of what? 90% of votes cast? A Web-linked vote from a GPL fanatic vs. a vote from a rep of a major employer/tax-payer/telco?
Get real....
>So much for the democracy.
>Why would it be different here ?
That's right, hopefully it won't.
The comments... (Score:1)
What this commentary period is for is allowing the UK patent office to hear your views. So rather than having the EU ignore you, the hope is to get the UK government/patent office to apply pressure by proxy.
I'm a bit disappointed that more people aren't interested in this, with the longest post I've seen being a troll in German. I'm sure there are a lot of people in the UK (and the EU) who must have an interest in this. Even if you're from the USA or Canada, I would still say put a post in.
If you are reading this, make an effort to read what is going in. Remember democracy doesn't work if you don't participate, so don't start bitching later when laws you don't like are passed.
Directive is unclear (Score:1)
Re:Directive is unclear (Score:1)
In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).
The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.
Re:Directive is unclear (Score:1)
Which implies that my second example, of a data compression program that runs on a general purpose computer, is patentable, because it has a technical effect.
This creates a serious difficulty in the interpretation of section 52(2)c. Computer programs that lack a technical effect cannot be the target of the exclusion in this section because lack of a technical effect already excludes them from patentability. Computer programs that possess a technical effect are not the target of this exclusion because possession of a technical effect exempts them from the exclusion. So what does the exclusion exclude?
Re:Directive is unclear (Score:1)
The Board of Appeals of the EPO reasoned that the things in the list of 52(2) have in common that, when considered as such, they are not of a technological nature. And because it says "in particular", it must follow that an invention, to be patentable, must be within the technological arts. The 'as such' stresses this: a computer program as such is a mere algorithm or abstract thing, but a computer driven by a program is a technological thing and so not excluded because of the 'as such'.
So, basically, the exclusion paragraph of 52(2) and (3) does not exclude anything that wasn't excluded already anyway. It's just a way of stressing the fact that an invention should be technical by enumerating things that clearly are not technical. This is one of the reasons that the EPO tried to get this part of article 52 removed completely back in 2000.
I don't know why the EPC didn't say from the start "An invention shall be of a technical nature". Apparently they thought this was self-evident, and just gave a list of potential borderline cases to be safe.
Re:Directive is unclear (Score:1)
"So what does the exclusion exclude?"
You're right, I didn't. What I tried to do was explain why computer programs are not always automatically excluded. The EPC is rather unclear on this, despite FFII's claims to the contrary.
The EPC has the restriction that only "computer programs as such" are excluded. Thus, to answer the question "What is excluded?", one must address what this limitation on the exclusion means, and why it was included. Otherwise it makes no sense to state in the treaty that it is only excluded if it is a program as such. If that limitation weren't there, I would agree with you that software isn't patentable.
However, now that this peculiarity is in place, you can't just say (like the FFII article you quoted did) "According to the European Patent Convention, computer programs are not patentable." and then argue that only in the 90's did they suddenly come up with some meaningless 'as such' restriction. That's been in there since 1974, when the EPC came into force. This has to be addressed if you want to argue within the scope of the EPC whether software is patentable.
The EPO has reasoned that the exclusion is for anything that does not solve a problem in technology, and the list in 52(2) is just an illustration of things that, as such, don't solve such problems.
As far as I can tell, the FFII does not address why the "as such" restriction is there, and reasons from German law (which used to require physical causility back in the '70s) how the EPC should have been.
Re:Directive is unclear (Score:1)
I found a EPC parser bug in "The First Mover Monopoly" [olswang.com] that might be present in your thinking too (p. 30): "These requirements mean that not all inventions are patentable".
That's because that article, like me, is used to using these words as legal terms of art. Something can be an invention without being patentable (for example, if it's known). Other things cannot be inventions (for example, surgical methods). It's a matter of definition.
According to old hard core theory only the technical contribution is patentable, not the scientific theory, the mathematical method or the computer program.
Absolutely correct, and I think this is still the current EPO practice. But they've split the evaluation up into two separate parts: is it "an invention" (ie not excluded by 52(2)) and second, is the invention obvious? Both are relevant questions when assessing patentability of something, but they're separate questions.
Reducing hard disk access time by adding a cache in RAM is an invention, according to the EPC. It's also extremely obvious, so you still won't get a patent, but that is a different question. Note that this invention nowhere mentions the use or presence of a computer program. It's a technical measure that most likely will be implemented in (OS) software, but that is not relevant to the evaluation.
You can insert "as such" anywhere you want, the meaning will not change.
I didn't insert that. The drafters of the EPC did. And we assume they did that for a reason, namely to lessen the restriction imposed by 52(2) in some fashion. In the first drafts, the "as such" wasn't there at all, but it was put in after objections from particularly the UK (Beresford, p. 19). So, why did they put it in and what does it mean?
And that is why the uninportant 52.3 is not present in Swedish and Danish law.
Actually, Denmark does have it in its patent law:
So they simply moved it into the heading of the article corresponding to 52(2).
Swedish patent law doesn't use "as such", but rather says "merely":
I'm not sure how similar "merely" and "as such" are, but they do seem to indicate the same thing: if what you have is more than just the fact that it's a computer program, then you may well have an invention.
I don't know how much you can take. I don't want you too get angry because I and the others that have signed the petition need your help.
Don't worry about getting me angry. I'm here exactly because I want to discuss these issues. It's also the reason I set up my website [iusmentis.com] with patent information.
To finally answer your question (hopefully): the EPC, according to the latest case law, excludes only computer programs which do not produce a "further technical effect". That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is not an invention, because then you've claimed exactly a computer program as such.
If the application goes beyond such ordinary computer programs, then you do have an invention. For example, if you realize better control of a steering mechanism with a computer program, then that's a "further technical effect". Maybe the realization is an obvious use of computers, but that is another issue entirely.
I think the important part is: is this a desired interpretation of the EPC, or even, should the EPC have been drafted in this fashion?
Re:Directive is unclear (Score:1)
"Something can be an invention without being patentable"
No, this is the same bug again.
I think we're going to have to agree on which dictionary we will use. The EPC makes "being an invention" one of the requirements for patentability, but not the only one. The light bulb, as originally invented by Edison, is an invention, but it is known and so cannot be patented today (although it was in the 1880s).
Inventions are patentable, and there are no inventions that are unpatentable.
So, you would say that the lightbulb isn't an invention, but rather that it was an invention, I suppose. Ok, I can understand that (it's the common use of the word), but please keep in mind that when dealing with patent law, it works best if you use the legal terms and legal meanings rather than the common, layman terms.
Nevertheless, for the present discussion it does not matter, and the EPC does not consider computer programs as such to be inventions - in both senses of the word. :-)
You _know_ programming is about logical problem solution because you can program. Lawyers can't, and they think everyting about computing is technical.
True. That's why I was surprised when the EPO Board of Appeals (which btw includes several technically qualified people) came up with the "further technical effect", and made the distinction with "normal technical effects" that all computer programs exhibit. So it is not enough to say "This is a computer program", you have to demonstrate what this particular program does and why that particular effect is technical. I've given some examples [iusmentis.com] in the context of business methods on my site.
You know Thomson? Do you know they have a patent on BladeEnc? Do you know how they got it? Answer: IP-technology.
I thought the MP3 encoding patents were held by Fraunhofer, but I could be wrong. My own area of expertise is digital rights management, not signal coding. And I don't think I want to comment in public on patents held by direct competitors of my company.
I suggest you take a look into EPO practice before you go to far in looking for consistency and logics in EPO legal doctrine. As a matter of fact, I'd be surprised if you found them since those are not usually the main objectives of powerful institutions.
Well, you will have noticed by now that I work at the patent department of one of the largest electronics firms in Europe. So I am quite familiar with the state of the case law regarding software and business methods at the EPC. While I agree that the case law leaves much to be desired, I do believe that by now they have worked out a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus. Basically, it doesn't matter that the invention is embodied in software. If it were embodied in hardware, would the resulting effects then be technical? If so, it is patentable (assuming novelty and nonobviousness).
"So they simply moved it into the heading of the article corresponding to 52(2)."
No - the other way around. I think England insisted on inserting 52.3 while other member countries were happy with their wording, but I could be wrong
I'm going to have to take your word for the translations of the EPC into Danish and Swedish. It would be interesting to see how these countries defend being in compliance with the EPC whilst ignoring this provision.
(can I get an url for "Beresford, p. 19" to erik@sslug.dk ?). From comparison I think it is evident that 52.3 was inserted.
"Beresford" refers to the book Patenting software under the EPC by Keith Beresford (ISBN: 0-752-006339). Oh, I see FFII has a review [ffii.org].
According to Beresford, they didn't even have an exclusion for software at all at first. It appeared first in 1971 as a point under discussion in the list of items like "mere discoveries" and "purely aesthetic creations". These "merely" and "purely" qualifications were finally moved to 52(3) when the EPC was adopted.
Finally (and here I rearrange your wording), the EPC, according to the latest case law, excludes only computer programs as such if they are not claimed as what they are. That is, if it does nothing more than any other computer program would (display things, produce electrical currents, etc), it is claimed to have a "further technical effect". I guess you know that there are IP-tech instruction manuals for this:
Yes. In fact, I've sat through several conferences that purport to teach you how to draft claims to get protection for software as such. It is not quite as simple as this article makes it appear. You can't just say "It's process control software and so it is an invention".
Also you better make sure you are not infringing on the great "inventions" EP0895689, EP0747840 and EP0522591 on your homepage.
I am running my website as a private individual and so, by law, cannot infringe on any patents. Further, EP0895689 is not a patent. It's just a published applications, and those have no legal force.
Weither EPC should be drafted in another way or not we have to discuss another day. I think the important part is: Could you consider defending the intellectual property of european software creators instead of inviting an american lawbenders army?
I am defening the IP of a European software creator [philips.com], although the software my employer makes is for a large part embedded in hardware. Our innovations were traditionally realized in hardware, and as such clearly patentable. Now that the industry trend is to move to more and more functionality in software, and we still desire to same level of protection for our innovations, you'll understand where I'm coming from. It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software. So a balance has to be struck between "all software is patentable" and "all software-related patents should be abolished."
As a final note, I am not speaking on behalf of my employer, in case that wasn't clear already. :-)
Re:Directive is unclear (Score:1)
I dissapionted you did not comment on the problem of overlapping property systems that will be legalized with the directive. I had some hope you were interested in a real discussion, but as I understand your comment, mind and matter will become one if we agree on dictionary use.
I'm sorry, I must have missed that comment. I'm just not sure I properly understand the distinction you're making, and that's why I was worried that we were using different definitions for the same thing. And once again, I am interested in a real discussion.
There is no doubt that philosophy of law will be destoyed if it is forced to integrate contradictory and/or meaningless concepts like these.
Please keep in mind that that article sums up present EPO practice. I'm not saying this is how it should be or even that it is consistent (in fact, it isn't). But I do not entirely understand your comments. If my device works on inputs from the physical world (like inputs from a sensor on an industrial robot), then why would that not be sufficient to make it an invention?
a sensible compromise: a computer program is patentable if it qualifies as an invention, just like any other device, method or apparatus" You know, It's a typical ingredient of irrationalist philosophy to belive that everything is the same or exchangable. It's useful for zen meditation - but not for law.
I guess you are too young to talk to your employer about the possible advantges your company could gain from a software patent free Europe, as once it prospered from banning the patent system 100 years ago.
I don't think age has anything to do with it. Right now we're faced with a situation where we can use patents to protect our innovations and R&D investments related to new devices like televisions and DVD players we put on the market. A lot of those innovations involve software, or at least implementations in software. How can I tell the business "Sorry, we can't protect your innovations if you choose to implement it in software; oh, and we can't do anything about competitors emulating your hardware functionality either"???
That's basically the issue. I don't care about "pure software" patents (whatever that may mean). Something that's entirely software or an algorithm is excluded. But if the software is part of a larger system, I firmly believe it should be patentable.
Oh, and as to abolishing patent laws in the 1850's, an important reason was that the patent law we had back then was really bad. And the jumpstart you get from being able to steal everyone else's inventions is nice to get your economy going (we were called "a land of highway robbers" by the rest of the world), but once your own R&D starts to take off, you want patents. That's what the Americans did in the 1790s, and the Japanese in the 1860s. And that's what the Netherlands did in 1912, after -what a coincidence- Philips became a big R&D company.
What about embedded Linux? Or even distros? Don't you think there is money to make there?
Is your company completely stuck in a business model based on software patent protection that arguably stifles innovation?
As we're an electronics firm, our business is selling boxes that do nice things. We have a very large R&D department, and they come up with lots of innovative ideas with lots of effort. The patent system was, from the very start, designed to allow businesses like ours to protect our investments.
In the past, those innovations would be hardware things (like new lightbulbs or new disc-shaped carriers and lasers to read data from them). Nowadays, most of those innovations are realized with the help of software. I simply cannot understand why this makes the situation different; the innovation is just as valuable, for reasons of economy we implement it in software rather than hardware, and then suddenly we can't patent the new television anymore?
But perhaps you don't care?
I don't think that's a fair comment. :-( I do care about the patent system, and I hate it when people get patents on obvious things, because they destroy the reputation the patent system has. Not to mention all the problems it causes in the world. I don't agree with everything you or the FFII say - but that's no reason to say I don't care.
Maybe we're just using the wrong words to express our respective views. Maybe it's the medium. I don't know. I do get the feeling we're not that far off, but you're coming from different principles than I do, and that confuses things.
Re:Directive is unclear (Score:1)
You can contribute: ...
Make a list of real patents, taken from the EPO patent register, but reduce and simplify them so that they consist of:
So then I'd have a list of bad patents that should never have been issued. I can make such a list for any field of technology. What would this prove? That bad patents get issued? Sure, we know that. That it's more common in software-related fields to have bad patents? I can't prove that without doing the same for other fields and coming up with some common metric. And coming up with such a metric, and doing the evaluation in all those fields would mean a Ph.D's worth of work.
2. Is the contribution a technical one? Why (not) ?
I fundamentally disagree with the assumption that a technical contribution is necessary for something to qualify as an invention. The EPC is quite clear that something must qualify as an invention and as novel and as having an inventive step and as having industrial application. Therefore, the qualification for "invention" must be separate from novelty and inventive step. And you cannot identify the contribution without doing at least a novelty test, because you don't know what the contribution is if you don't check what the novel aspects are.
So, properly, the evaluation whether something has a technical contribution (which I do agree is absolutely necessary for patentability) cannot be done until after the evaluation of novelty. And that's why the Pension Benefits case rightfully put it with inventive step.
Nevertheless, we can then argue that such things are not inventive and so should not have been patented. But how would this convince the EPC-countries that are not caselaw-based, like Germany, France or the Netherlands? All of these currently allow patents on software-related inventions, the 1976 Dispositionsprogram or the Dutch Switching network) notwithstanding. See e.g. the 1993 "Barcode" (Streepjescode) verdict of the Dutch Patent Office.
I am sure you have the skill and knowledge to find some interesting IP-tech patents that will pinpoint the weaknesses of the directive. You can also look in the horror gallery. You could actually make the Comission resolve the EPO "physical data" inconsistency by doing this.
You still haven't explained to me what this inconsistency is. The EPO tries to resolve the "what is technical" issue with caselaw, and I identified a common theme in their caselaw: If you work with physical data, you're more likely to have a technical invention. That doesn't mean you can simply say "Oh, this data could be real world data, so it's an invention".
I'm not sure that is the problem. Maybe it's the medium. I can only ask you to again read Dispositionsprogramm and "Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention". Read it slowly and think of how to boil a frog. I think the water passed the critical deadly temperature with T 1173/97. The Commission is now about to legalize overlapping legal systems and that will kill BladeEnc and hurt SMEs all over Europe.
Wouldn't you say that the fact that the EPO threw out a pure business method (the pension benefit system) is a signal that they're coming round from the path taken in Sohei? In PBS, the fact that it was software wasn't enough to make it an inventive step.
Nevertheless, I've read the verdict and the Slippery Slope article. The article is written very much from a German point of view (understandably), but it provides no justifications for its premises. Very roughly, it says that the German system has a very good distinction between mind and matter, and that distinction is now getting very blurred, which is bad. Therefore, we must do something. This doesn't answer the question why this is bad.
Further, I do not see why the fact that there's overlap in the legal systems is a problem.
"It is simply not fair that an innovation could be copied or imitated merely because it could be realized in software"
Debugged: "It is simply not fair that an idea could be copied or imitated merely because it could be realized in software"
No, that's not the same as what I said. An innovation is not necessarily a novel idea. If we come up with a technique to make a TV work at 100Hz, then that's not an idea, but a practical realization of an idea ("let's make a more stable picture by scanning at 100 Hz").
It then should not make any difference whatsover whether the technique is realized by a set of chips, by some chips and some software, or by just a bunch of programs. That's an implementation detail.
Copyright protects from both copying an imitation, so there is no need to worry. Perhaps even competition law could be applicable?
Copyright does not help me against someone taking the technical principles, or even the functional realization of my device. Most technical things are unprotected by copyright, precisely because they are technical things that have to be done like that, and not original expressions. So you're free under copyright law to copy my device, and changing the frills and bells to make it look different. And if it looks different, you're outside the scope of my copyright.
Competition law does not help, as we put products on the market ourselves. That means everyone is free to buy one and study it. Competition law thinks this is perfectly acceptable. If there is no legal means to prevent people from ripping off our innovations, then we will get ripped off and eventually go out of business.
We could sell the devices with restrictive license conditions (like the DMCA) that forbid reverse engineering, and then go after people with competition law and contract law. But you really don't want that.
I can understand that you are worried about your company IP. But I think you agree that the law has to be written in the interest of the society as a whole. And perhaps patents on logical functionality is bad even for you?
I agree, the law has to benefit society as a whole. But if you agree that new, technical developments are to be protected by patents, and you know that a lot of new developments is done with (embedded) software, then would you agree that patents should protect those new developments?
Re:Directive is unclear (Score:1)
Yes, and that list should be used to benchmark the clarification capacity of the directive. As it is written now, it explicitely authorises the patenting of computer-implemented business methods. Which it's not supposed to do according to Bolkestein. And perhaps something you dislike?
No, it doesn't (see e.g. considerations 12 and 15, where it says that business inventions by definition lack an inventive step). This is in conformance with T931/95 (pension benefit system).
"Art 52 says that, while a technical invention may make use of a program, a programming solution as such is not an invention. When there is no invention, there is nothing to claim, regardless of whether the claim is directed to the non-invention as such or to an apparatus whose only novel feature consists in the non-invention."
I completely agree with that. A program as such is not an invention, but an invention could at some point use a program in its implementation. However, it would be rare to have a claim whose characterizing feature was "using a computer program".
Or is a claim not statutory if an embodiment of the characterizing feature could theoretically be realized in software? If I have "calibrating means for adjusting the output frequency to less than 50Hz", is that software?
I just need a list of software patents, taken from the EPO patent register, but reduced and simplified so they only consist of.
Sure, can you give me a definition of "software patent" first? There's no IPC classification for that. And I'm not going to read one million patents just in case they might be using software somewhere.
"I fundamentally disagree with the assumption that a technical contribution is necessary for something to qualify as an invention."
That is not the assumtion, that is article 4.2 of the directive, which is the subject of the test: "Member States shall ensure that it is a condition of involving an inventive step that a computer-implemented invention must make a technical contribution".
Please note that the directive uses EPC terminology. "Invention" is not the same as "patentable". Something must be both an invention and have an inventive step to be patentable. The directive says, the technical contribution indicates whether something has an inventive step. It says nothing about whether that something is an "invention" in EPC terminology.
Now, I know that you don't think this is the right usage of the words. But it's what the EPC says, and it's how the directive uses the words. But to clarify: I fundamentally disagree with the assumption that a technical contribution is necessary for something to be statutory subject matter. If something lacks a technical contribution, it should be shot down in flames as lacking an inventive step.
"You still haven't explained to me what this inconsistency is."
Oh.. I thought that was obvious: you say EPO says physical data may be data representing an image but not data representing a text. The physical data "01100100 01101111 01100111" is of the same kind as "01101111 00000010 01000000" so why is the latter not an animal in the empire?
Right, now I see. Well, the former is a representation of something from the real world, translated into binary form. The latter is fictional. You can measure real world phenomena (look, 15 volts on this line) but not abstract things.
"An innovation is not necessarily a novel idea. If we come up with a technique to make a TV work at 100Hz, then that's not an idea, but a practical realization of an idea ("let's make a more stable picture by scanning at 100 Hz")."
Exactly! This practical realization has to controle the physical problems of scanning and producing pictures at 100Hz in a new non-obvious way etc to be a patentable invention.
Right. And the people realizing this have provided me an embodiment in which, through careful adjustment of the control software, the scanner can scan at 100Hz. The novel aspect is then the particular adjustment in the control means, preferably in the control software. Assuming everyone agrees this is not an obvious thing to do, would it be a patentable invention?
No - why don't you have a look at the licence of LEON again. The VHDL process is already patented I guess, but LEON is protected by copyright, what is wrong with that?
I'm sorry, I was talking about a different issue. People can now buy a 100Hz television, take apart the control system and study how we get that 100Hz picture. They then do a clean room implementation of software to get their own system that works exactly the same, but copyright lets them do that.
If our embodiment in the TV were purely hardware, they'd have to copy the chip, and then we'd go after them with our patent on the chip. But because the embodiment now just happens to be in software, they can steal it freely? That doesn't sound fair to me.
And there actually is a special protection for "sets of chips": legal protection of topographies of semiconductor products (87/54/EEC)... so what is your problem?
Is anyone actually using that thing? First of all, it only works for topographies, so if the implementation is more than that, we are out of luck. Second, it doesn't help in countries where that directive isn't implemented, like most of the Far East.
Re:Directive is unclear (Score:1)
Forgive me for jumping in quite late here, but I'm not sure anymore what patents are supposed to protect! They can't protect a business method, but they can protect a method of doing something else? Got a quick refresher on how our patent system works in the EU? Anyway, on to the bit that caught my eye...
People can now buy a 100Hz television, take apart the control system and study how we get that 100Hz picture. They then do a clean room implementation of software to get their own system that works exactly the same, but copyright lets them do that.
If our embodiment in the TV were purely hardware, they'd have to copy the chip, and then we'd go after them with our patent on the chip.
But they wouldn't have to copy your chip - they could come up with their own way of implementing the same concepts. Is this against patent law?
But because the embodiment now just happens to be in software, they can steal it freely? That doesn't sound fair to me.
Nor me, but the program itself is covered by by copyright. The method of doing something is what's at stake here - if you have algorithm X that is a way of producing your 100Hz picture, isn't that algorithm currently unpatentable? If it's only your implementation of the algorithm that is patentable, then copyright has already got you covered, and if you want the same effect as licensing your patent, you can draft a copyright license that allows similar things.
Note: IANAL, nor have I particularly been following patent stories, despite the silly things that can happen (one-click patents? sheesh!). I just don't have time to follow every cause that I'd like to - sue me :-)
Re:Directive is unclear (Score:1)
Re:Directive is unclear (Score:1)
> If the application goes beyond such ordinary
> computer programs, then you do have an invention.
But ordinary computer programs that process data,
which happen to represent business data, can get
patented. Where is the technical effect or 'further technical effect' in this?
The EPO examples of business methods you give on your website are examples
for solving abstract non-technical problems using a computer.
Here I define technical to mean applied
knowledge to material objects and their fenomenology. And patents as a
teaching of applied knowledge to a technical problem.
Or in the language of the philosopher Karl Popper: the inventor using his
world 3 knowledge to create an invention in Popper world 1.
Brief explanation: Popper devided reality into three worlds. The first world
is the world of material objects and their fenomenology, the second world is
the world of perception, consciouness, and thought. And the third world is
the world of abstract concepts, such as physical theories, matematical
methods, logic etc. The third world consists of objective knowledge, that can
be formulated in language and discussed.
Said in another way, originally patents could only be given to problem
solutions within Popper's first world (technical problems). The exclusions of
the EPC are Poppers world 3.
But increasingly the defintion of technical contribution has been weakened to
no longer require application of knowledge about natural forces/laws of
nature Technical problems are meerly practical repeatable problems according
to Mark Schar (search FFII for his name).
This means that the patent system is issuing patents on using computers to
solve abstract logical problems within Poppers third world.
Computers are clearly within Popper world 1, but the software the run
represent Popper world 3 knowledge. Hence the patent system is in effect not
issuing patents containing/formulating a learning of solving techncal
problems, but they are issuing patents on using knowledge to solve abstract
problems. Since this is basically what a program does, even though the
program happen to control some physical device.
Ofcause it's very nice that a patent does not cover performing the a software
algorithm by hand, but most people do not want to do LZW compression by hand,
everytime they want to generate a GIF file. So a patent is infact a monopoly
on the application of abstract logical knowledge.
The proposed directive does not propose clear limits for the patentability of subject matter, but
meerly requires all EU member states to follow the EPO, in it's quest for new
patentable subject matter within Popper world 3.
This is definitely not what the drafters of the EPC had in mind!
Re:Directive is unclear (Score:1)
But ordinary computer programs that process data, which happen to represent business data, can get patented. Where is the technical effect or 'further technical effect' in this?
Actually, if the data is business data (like monetary values), then that produces no (further) technical effect. You'd then have to look at, for example, whether the amount of data that is transferred is reduced, or something like that. But then it's no longer a business invention, but a data compression technique camouflaged as a business technique.
The EPO examples of business methods you give on your website are examples for solving abstract non-technical problems using a computer.
I've tried to summarize also the technical problem they claim to solve. In particular the older ones are quite restricted (in their claims; don't ever accept summaries of patents as being representative of what they cover). For instance, EP 407 026 (Distributed system and method for matching of buyers and sellers) sounds like a financial trading technique, but it's actually a distributed computing system. The fact that it processes financial data is irrelevant to its patentability.
The "Method of holding an auction and uses of the method" (EP 1012764) is a business method as such and should never have been granted. In fact, we've started an opposition against this patent on exactly that ground, and I'm quite confident we will win that (e-mail me privately for details).
Ofcause it's very nice that a patent does not cover performing the a software algorithm by hand, but most people do not want to do LZW compression by hand, everytime they want to generate a GIF file. So a patent is infact a monopoly on the application of abstract logical knowledge.
I like your analogy, and I understand where you're coming from. But how do you distinguish between the three Popper worlds in practice? I mean, I can see the definitions, but I wonder how workable they are in practice.
I'm going to google a bit on that and get back to you.
Re:Directive is unclear (Score:1)
> monetary values), then that produces no
> (further) technical effect.
What about EP504287 "Method and system for remote delivery of retail banking services" valid in most of EU?
As I read this patent, this is valid if you use a browser to connects to an online webbanking service, and transfers a request for debiting or crediting your account a certain a monetary value. E.g. pays your bills online.
Where is the novelty? I have paid bills before this patent was issued! Where is the technical effect, or 'further technical effect'?
Business methods are not laws of nature, nor do they pertain to the fenomenology of material objects. That's why economy and physics are two very different branches of science, even though both business methods and scientific theories belong to Popper world 3.
> I've tried to summarize also the technical
> problem they claim to solve.
What is your definition of 'technical' or rather what is the EPO definition of 'technical'? I think all the softwarepatent issues are directly caused by the dismanteling of this concept.
According to Mark Schar (Former EPO judge):
http://swpat.ffii.org/vreji/papri/jwip-s
The objective concept of technicality, [..] requires mainly the four following criteria:
* solution
* of a problem
* in a practical and
* repeatable manner.
Because a solution implies a problem, one can reduce this definition by mentioning only three criteria which are then absolutely indispensable: - a practical and repeatable solution.
And according to Schar the following are not requirements for technicality:
* by using controllable forces of nature
* the direct consequence of the use of
controllable forces of nature
These two requirements limit patentable inventions to be within the Popper world 1. Numerous practical and repeatable problems exists within Popper World 3 (such as business methods), but the solution of these these have not previously been patentable subject matter, because they've been untechnical. Clearly a business method has some indirect consequences in world 1, e.g. transferring products. But this is not a direct consequence of applying the business method.
And he states:
The technicality concept discussed here corresponds to the EPO also in that context, by which it becomes clear form this alone that a computer program which is not destined to be used for the objectively ascertainable solution of a certain problem, cannot fulfil that concept.
E.g. computer programs that solve a objectively
ascertainable problem are by EPO standards technical. Hence, almost all programs are by EPO standards technical, and hence patentable.
This is why even though the EU commission directive talks about 'technical computer implemented inventions', they are essentially requiring unlimited patentability of software that runs on computers. Including software that when it runs happens to execute a function which is a business method.
E.g. EP 086 199 This is a queing problem.
This is completely abstract problem (world 3). Selecting a que subject to some preferential criterion is identical to the scheduling problem of multitasking operatingsystem, same problem different language, because the problem does not depending on technical issues.
By reading the summary, I guess that the invention is a machine that issues tickes with a que number on it, where the solution is determined using software that solves the abstract que problem.
Machines that issues tickets with que numbers are not novel, but they are technical apparatuses (requires natural forces). The solution to the queing problem is completely abstract. Thus the combination of a technical machine (known) and a completely abstract problem (also known) is novel and has technical effect?
Certainly the problem is practical and repeatable so if that is the definition of technical then the invension is technical, but is that good definition of technical from the perspective of the society?
> But how do you distinguish between the three
> Popper worlds in practice? I mean, I can see
> the definitions, but I wonder how workable
> they are in practice.
I see the commissions harmonisation directive as the direct consequence of the unworkability of the concept of 'technical', as indicated by Schar...
In the context of both Shar and Popper, it's essential for something to be objective that it can be formulated in language and discussed. Because if different observers can reach intersubjective concensus by debate, and thus define objective criterions using a common shared language.
The goal is to formulate objective criterions for patentale subject matter, and thus this requires first the definition of a language in which the patent problem can be discussed.
Clearly relying on the subjective interpretation of a word like technical does nothing to ensure objective harmonised patent practice. As the EPO slippery slope practice shows.
Thus as long as the EC commission directive does not attempt to define the language it uses, it will not result in harmonized patentpractice on the long term. Thus defining language and giving examples are important.
Returning to your question.
Requiring the direct application of natural forces to bring about the solution of a problem is a good start to ensure an innovation is a world 1 invention.
The que problem is not such an example, because the solution can be obtained without referring to application of natural forces.
But I grant you that it is an good question, which I'll think about.
--
Best Regards Carsten Svaneborg
http://www.mpip-mainz.mpg.de/~svanebor
Re:Directive is unclear (Score:1)
What about EP504287 "Method and system for remote delivery of retail banking services" valid in most of EU?
I have no idea why that got granted. I certainly don't see any technical effect in that claim 1. Maybe they were the first to come up with such a process? The first guy to come up with a cash register also got a patent on it, even though it processes financial data.
Business methods are not laws of nature, nor do they pertain to the fenomenology of material objects. That's why economy and physics are two very different branches of science, even though both business methods and scientific theories belong to Popper world 3.
I agree. But there can be gray areas, like you said yourself. I like the example of the cash register: it's clearly a mechanical machine, but designed purely to process financial data. Surely a novel machine should be patentable, but the process of adding up prices to come up with a total to be paid should not be.
What is your definition of 'technical' or rather what is the EPO definition of 'technical'? I think all the softwarepatent issues are directly caused by the dismanteling of this concept.
I wish I had one. For me it's mostly a "gut feeling", but I cannot give a hard definition. Even worse, if someone did come up with one, it would be abused all the time to get your application passed. For my list I briefly scanned the description and claim 1 to find things like "reduces transmission requirements".
I do not agree with Schar's definition, because it nowhere mentions the technological arts, and I feel that there must be something related to technology in the solution. So I guess we're in agreement somewhat: I want to hear the technology involved, you want to see a force of nature being applied.
E.g. computer programs that solve a objectively ascertainable problem are by EPO standards technical. Hence, almost all programs are by EPO standards technical, and hence patentable.
That contradicts T 1173/97 as well as T 931/95. This is the "normal technical effect" the Board mentioned in T1173, and that should not be enough to make something patentable. It would render the exclusion meaningless, as all programs produce ordinary technical effects.
EP 086 199 This is a queing problem
That's the Petterson system, which concerned how to implement a queuing problem in hardware (Reasons, 2.3). And I do believe that building machines to solve problems, even business problems, should be patentable (unless of course it's an obvious implementation).
It's interesting to note that the corresponding Swedish application was rejected earlier for being a business method as such. The Board says that the Swedish courts later came round to the same views as the EPO (Reasons, 2.7).
Thus the combination of a technical machine (known) and a completely abstract problem (also known) is novel and has technical effect?
Maybe, but that technical effect is common to all technical machines, and so should not make the combination patentable. What's the further technical effect? In Petterson, the Board found such further effects in the way the machine operated, ignoring the business meaning that the data the machine processed had.
Requiring the direct application of natural forces to bring about the solution of a problem is a good start to ensure an innovation is a world 1 invention.
You're of course aware that the Japanese still work with this criterion. They want "a creation of technical ideas utilizing a law of nature [jpo.go.jp]". See also the Draft examination guidelines for industrially applicable inventions [jpo.go.jp]. Still, they seem to have few problems with allowing patents on software-related inventions if you claim them as "Computer loaded with software that can perform steps A, B and C". So apparently they took the same starting point you did, but came to a conclusion that I think you would not agree with.
Perhaps our differences lie in the fact that you seem to regard software as a type of product, like medicines, substrates, telephones, light bulbs, and so on. Many legal scholars do that too. But I think it's wrong to do that.
Software is a tool, a means to realize particular functionality. So, when solving a problem, you could consider using a DSP chip or software which implements DSP. Or maybe a bit of both. Or maybe you don't worry about such implementation details, and let your development system pick the optimal combination of hardware and software. This is called co-design [aful.org], and Greg Aharonian is more than happy to repeatedly and derisively point out that this means hardware and software is equivalent. And I agree with that.
And this isn't just a theoretical exercise. This is how electronics firms work in practice. Sometimes you want speed, and you build special-purpose hardware. Other times you want flexibility and you write software. The devices and their functionality are the same; it solves the same problems in the same way. So the fact that one of the devices uses software cannot be relevant. And that's the difficult issue.
So, I do not think that trying to define 'computer program (as such)' is going to help. Maybe a stricter evaluation of "solves a problem in technology" would help, although that still does not give a definition of what "technical" or "technology" is. But then, you could argue that "controllable natural force" is not defined either. Sure, we both know what it means, but that's our gut feelings at work. Maybe we should use those same gut feelings when trying to define "technology"?
Anyway, thanks for the civil discussion.
Previous Objects (Score:2)
This link also provides a good list of the previous objections raised to the introduction of patents.
http://www.patent.gov.uk/about/consultations/an
Mainstream media (Score:2)
The Patent Office will benefit from the 'power grab' following the expansion of patents, yet they are the ones, managing the consultation excercise.
The consultation produced a clear indication that software patents are not needed or wanted.
Yet the Patent Office has choosen to completely ignore this position and support the introduction of Software Patents in the EU.