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The discussion on software patents in various forums on the Net and in the Parliaments keeps revolving around the same questions and errors. A systematic collection of answers is necessary.
News & Chronology
2005-05-05 Pro Software Patents Dialectics of Bloor Research (standard patent ideologemes put forward in the name of a research institute, with rebuttals)
More Questions and Answers
From the viewpoint of the European Patent Convention (EPC): business methods and computer programs are excluded from patentability. But this exclusion is limited to business methods and computer programs "as such". So according to EPC some business methods and computer programs must be patentable (whether we like it or not), right?
No, that is the fallacy that the EPO tries to spread (along with the Commission and the Council).
If a technical computer program is no longer a computer program as such, then a "beautiful" computer program is supposedly also no longer a computer program as such (but one with a further esthetic effect). It does not make sense to interpret the "as such" clause in this way, because as soon as you add an adjective to what's excluded "as such" it's supposedly no longer as such and thus not excluded.
If you interpret the "as such" clause as proposed, then a computer program executed by a computer or stored on a medium is no longer a computer program as such. However, from a policy point of view, it does not make sense to only prohibit patents on computer programs in case they are not stored on a medium nor executed by a computer (I'm not even sure whether that would cover any computer program).
If the law states computer programs and business methods are not inventions, then it's reasonable to assume that they want to exclude those things from patentability, regardless of how you describe or claim them.
The "as such"-clause was simply added (officially) to make sure that e.g. a chemical reaction performed under computer program control does not become unpatentable as well. It was also added in order to achieve a result at the conference of 1973, at the price of allowing the UK delegation, which wanted software patents and created FUD about alleged far-reaching results of their exclusion, to accept the text while interpreting it differently than the others, thus laying the foundation for the later confusion.
Maybe the most clear explanation comes from the examination Guidelines from 1978 of the EPO itself:
- A computer program may take various forms, e.g. an algorithm, a flow-chart or a series of coded instructions which can be recorded on a tape or other machine-readable record-medium, and can be regarded as a particular case of either a mathematical method (see above) or a presentation or information (see below). If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims. For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.
The important part is "If the contribution to the known art resides solely in a computer program". I.e., that's what the "computer program as such" means. It does not mean that an improvement in a "technical computer program" (whatever that may be) would be patentable, because that's still a computer program.
Simly put: Without the quotation marks, there is nothing mysterious about "as such". It is a simple syntactic device: All XX are XX as such. As far as the patent is directed not to business methods as such but something patentable which involves a business method, the exclusion does not apply.
Why should I want to reject software patents when I've paid good money for some of them? How can I get my money back/protect my own investment in those patents?
What do you say to the accusation that the directive was not about software patents?
Sounds unprofessional. In the press release about the political agreement reached in May, p.2 the Competitive council was blunt: "Software patentability - political agreement on a common position.". Professionals in the field use the terminology Software patents. The EU-Commission talked about the Softpat directive. Computer-implemented invention is a word that suggest to be something different than a software patent. Ugly wording with a further deceptive effect.
Isn't Eolas a wonderful example on how a small company benefits from Software Patents?
Eolas is a wonderful example of somebody being awarded a patent for something that a) is obvious and b) has been invented many times before and c) should not have been granted this patent in the first place because it is not an invention. Just because something is innovative does not mean it is an invention. The patent offices do not have time to do proper searches, since the actual fees for applying for a patent are rather low, and these fees have to cover all the patent office costs. Neither do they have the proper skills and procedure for judging obviousness in the field of software.
We think Microsoft has unjustly been victimised in this case and it is our hope that the U. S. Patent Office will overturn the patent in its re-examination.
Don't patents encourage innovation because the developer have to find new solution that circumvent the patent?
It encourages innovation along less efficient paths, since the purpose of the circumvention is not to find a better way, just to find one that does not infringe on the patent. It is better for society that the sharpest minds focus on beeing innovative insted of focusing on working around artificial obstacles.
Why are you against Intellectual property?
We are not against intellectual property. We are for an efficiently working society. Intellectual property should be awarded/granted by society when it promotes a better world, not when it destroys competition, free market and promotes the wealth of some at a greater cost to others.
Questions asked at a meeting with SwedishEnterprise in EP 2004-11-30 http://www.ffii.se/erik/SPN/InbjudanSPN.pdf
- What are computer-implemented inventions really?
- Why has this question generated such a intense debate?
- Does the directive result in a harmonisation of current regulations or an introduction of new legislation?
- Is it really a question of the big companies against the small?
- Which effects would a change have on Sweden's and Europe's competitive strength.
Are they all wrong?
Example IIPI.org discussion:
These organisations, representing companies that employ tens of millions of Europeans, generate billions of euros in tax revenues to advance the social cause of Europe and which produce world class products and spend vast budgets on cutting edge R&D - they are all wrong because they do not agree with you that the CII Directive is about software patents and not about inventions that use software to achieve their effect. How extraordinary that you should know more about their businesses and industries than they do.
Answer: Invalid authority proof. Yes, we believe they are misguided.
ten questions with answers on patents in general http://www.bios.net/daisy/bios/50/114
