Possible questions for the DTI meeting, 2004-12-15

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Patentability

Limits to patentability ?

Q.: Are there any non-obvious new programming techniques that the Government believes should not be patentable? How would the Directive achieve this ?

Gale's Application ?

Q.: Under current UK case law ("Gale's application"), patents should not be granted just because a new programming method makes a program run more quickly. But this restriction does not appear in the Council text -- in fact a European Parliament amendment to achieve it was rejected. So wouldn't the Directive abandon the case law established by the "Gale's application" case ?

Should Windows be patentable ?

Q. The electronics association EICTA has said that it is not appropriate for program elements in a program such as Windows to be covered by patents. Does the Government agree ?

Deutsche Bank test ?

Q. Deutsche Bank test ?

User Interface elements ?

Q. Under what circumstances should user interface elements be patentable ?

Q. According to EICTA, patents should not be available for User Interface elements, such as the Apple "wastebasket". Yet the EPO has granted patents for "Tabbed pallettes", and the "Progress Bar" (EP 394 160). Should the Directive uphold or repudiate such patents ?

Political process

Q.: So far the Government's aim has seemingly been to ram through the Commission text as little altered as possible. Given the deep concerns expressed by the European parliament, wouldn't it be better to open conciliation discussions with EU parliamentarians, before formalising the Council's "Common position" ?

Q.: In June 2002, the House of Commons Select Committee on European Scrutiny recommended a fifteen day "cooling-off" period for governments and national legislatures to consider proposed Political Agreements before those Agreements became final. If such a "cooling off" period is a good idea for timeshare purhases, is it not an even better idea for key pieces of European legislation? In the committee's view, ending the culture of last minute "ambush amendments" would lead to fewer ill-drafted and ill-considered pieces of legislation. Does the Government agree?

Directive structure

Q. Pensions Benefit System

Program Claims

Q: Program Claims

Some suggestions from a Groklaw respondent, 2004-11-09

Authored by: Anonymous on Tuesday, November 16 2004 @ 10:38 PM EST Questions to ask the UK patent office (#1 is particularly good):

1. European patents have already been issued (illegally) for many things which are pure software, are obvious and unoriginal to anyone skilled in the field, and generally fail all the requirements which you claim the directive contains.

See the FFII's Webshop example at http://webshop.ffii.org/. #8 and #17 are arguably inventions of some sort, but the others are 100% obvious to any programmer, containing no invention at all, and most of them consist of software to support business methods.

Will the UK patent office be advocating to have those patents revoked immediately? If not, how is its position anything but pure hypocrisy?

2. Given that

the US authorities have shown absolutely no ability to distinguish between software patents which are actually new and inventive and those without;
European patents have already been issued (illegally) for things which are clearly obvious to anyone skilled in the field (see the webshop example from the FFII);
How can you possibly avoid the massive slide in patent quality which seems to be inevitable when software patents are allowed?

3. All conceivable patents on software can be construed to contain a "technical contribution", for the same reason that all programs can be construed as "computer-implemented inventions": because the purpose of all software is to control hardware. This is not, therefore, a clear test or a substantive restriction. Why do you claim that it is? Why not put in an actual clear test or substantive restriction?

4. You claim that the Directive will not create a system like that in the US because of this "technical contribution" restriction. However, exactly the same restriction is present historically in US case law. First a computer-implemented invention, containing a software component, was allowed to be patented. Then judges were unable to make a distinction between that and other software patents, and over the course of several cases, all restrictions vanished. The Directive contains nothing to prevent this, since it follows essentially the US form. Do you have any plans to prevent this, and if so how?

4. FLOSS software exists in the US mainly because software patents are not actively enforced against it. If all the US software patents were actively enforced, essentially all FLOSS software would be legally unusable in the US. Since the directive establishes the same rules which are officially present in the US (see #4), it will likely create the same situation. Yet you claim "Open source software has thrived under the current patent system and the Directive won't change this." Do you believe that existing under constant threat of legal action from rent-seekers and would-be monopolists who have performed no innovation is "thriving"?

5. The European Parliament proposed sensible, democratically supported amendments. Yet the Directive does not contain these. Why is the UK government advocating against the democratically chosen will of the European people, and thereby against democratic control of the EU institutions?

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