SSLUG-msg00236.html

Strawman no 1: 
The proposal is about softwarepatents but the answer is about copyright.

However, a computer is by definition technical (there is btw. no definition
of technical in the proposal), hence software is technical, hence methods
implemented using software can be patented.

> Won't extending patents to cover computer programs reduce competition?
> The Directive will not make it possible to patent computer programs "as
> such". ...

Strawman no 2: does patents not reduce competition? No because 
programs are still covered by copyright.

But selling, using, or distributing software for commercial purpose is
without licences from the patentowners is still not permitted.

Does that not reduce competition for software?


> What consultations has the Commission undertaken on this issue?

There's a link to the summary of the consultations. However, even though
the numerical majority is against software patents, the pro-software
patent companies provides more jobs and probably also better 'soft-money',
and hence their input is counted more than the numerical majority, just
like in a true democracy.

I wonder if the purpose of the EU is to server the people living within the
EU society, or to serve the companies that send lobbyists to Brussels.

Remeber: Patents are a trade between a society and a company, the
monopolies created by patents have expenses that are ultimately paid
by the society, for that the society buys the free usage of innovations
after the 20 years of monopoly duration. If these innovations are trivial
(as most softwarepatents are) then this is a bad trade for the society.
However, getting patents on triviel innovations is a good trade for the
companies, hence the lobby effort.

Hence who does the EU serve in this matter?


> Why are patents good for innovation?

The answer is dogma, I do not know of any surveys that demonstrate that
softwarepatents is good for innovation in an information society. Certaintly
there's massive issues in ensuring novelty of softwarepatents, as the
EPO and USPTO practice shows. (see 
http://www.google.com/search?q=trivial+patents)

The can argue about the situation in the states, but is that the US results
correlated to the existance of softwarepatents? Remember correlation 
does not infer causation.

It also beggs the question  "Why are patents bad for innovation"?


> Isn't software different to other technologies in that patents can be used
> to block legitimate independent innovation? 

>[..] This would be the case only if the scope of protection granted by
> patents were extended to software as such and, for instance, blocked the
> use of an algorithmic idea in other technical fields from the one in which
> a patent is granted.

Strawman no 3: Are patents bad for independent innovation, no because
copyright software as such.

It seems the writer of this FAQ does not grasp the concept that a patent
is a monopoly on performing some method, and this has an effect even
on the usage of software products, though software on a CD is not
patentable as such, but since it's protected by copyright there's no need.

Furthermore since technical field is not defined anywhere, the scope
of what constitutes one technical field is not defined, it's likely that
running software on computers consitutes the technical field of relevence.
And since algorithms in software are usually run om computers a patent
on software would block all usages of that software on all computers.


If a technology becomes patented, then all the sub-technologies that
it enables will be more expensive to implement, and the subsub-technologies
that those allow will be even more expensive. Hence the licence costs
grows exponetially with the branching. Now imagine if TCP/IP was patented,
HTTP was patented, encryption and compression over HTTP was patented,
rendering HTML with CSS and javascript was patented, using HTML forms
over HTTP and TCP/IP to do e-commerce, then you could end up paying
quite a number of licences for all those technologies that enable 
e-commerce.

The LZW compression algoritm is patented, and this is used in compress,
GIF, PDF, PS, and TIFF. One algorithm many seemingly unrelated technical
fields. Btw. algorithms by definition are automatic and repeatable hence
technical according to EPO.

Remember the proposal does not define technical as discussed below.

> Would the proposed Directive restrict the interoperability of computer
> programs?

Strawman no. 5: Does patents restrict interoperability?
Answer: No copyright still allows reverse engineering for compatibility
purposes.

However, if these protocols use compression, encryption, or security
related authorisation algorithms (all of which today have futher technical
effect according to EPO) and hence is patentable subject matter. Then
programs that use these protocols still can infringe on patents, so only
private non-commercial operations may write software that reads and/or
exchanges data using these protocols.

In effect patents on protocols restrict interoperativity of computer 
programs
since they are monopolies on the commercial usage, distribution, and 
sale of such programs/functions.


> Does the proposal include rules about business methods?

The reply mentions '"pure" business methods' this must mean buying
something at the local market exchanging real money with a real person.
Because otherwise it would involve software and computers and
automatic reproducible processes, hence be technical.


> What is meant by "technical contribution"?

This is the most important part!!

>The proposed Directive defines a "technical contribution" as "a 
contribution 
>to the state of the art in a technical field which is not obvious to a 
>person skilled in the art". If an invention implemented through the 
>execution of software did not make a technical contribution it would be 
>considered to lack an inventive step and thus would not be patentable.

'technical' is what person in a technical field recognises as technical.

Thus it's defined in a circular manner, and as a result it's not
defined at all, especially not when companies like IBM can
fund lawyers and lobbyists to chip away any meaning it might
have for a sensible sentient person as they've already done
with the EPO practice.

Hence, in effect there is no limitation to 'technical inventions'.

Example:
Improvisation in Jazz music is a highly technical field, thus somebody
making a scheme for doing improvisations would make a technical
contribution to the field, according to somebody skilled in the art of
Jazz music.

Does the definition above restrict 'techical' as pertaining to the
world of natural forces? No!

Now if that scheme is expressed as a MIDI file, it can
controll a syntetizer (which is a computer), thus the MIDI file is 
software. In reality digitally stored nodes in a MIDI file is the musical
analog of an executable file on a PC, instead of making windows on
the screen it makes music on the loudspeakers. Since the proposal
does nothing to define software and computer as pertaining to
general or special purpose computers, the proposal has no limitation
to patentable subject matter. Neither does it clarify the current situation.

Does the proposal define what consitutes a computer or a software
program? No!

Give me enough money and lawyers, and I'll start softwarepatenting
music if this proposal is accepted!


>It would not be possible for a legal text such as a Directive to attempt 
to 
>spell out in fine detail what is meant by "technical", because the very 
>nature of the patent system is to protect what is novel, and therefore not 
>previously known. In practice the courts will determine in individual 
cases 
>what is or is not encompassed within the definition.

The German Federal High Court has made a very clear and lucid 
definition of the concept of technical as the controlled use of natural
forces to achive causally deterministic result without the intervention
of human intelligence.

Slightly lengthy, but atleast music is excluded from patentable subject
matter.
(see http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexen.html, and
http://swpat.ffii.org/stidi/korcu/indexen.html)


> However, earlier court
>decisions have indicated that a technical contribution may arise if there
>has been some improvement in the way that processes are carried out or
>resources used in a computer (for example an increase in the efficiency
> of a physical process), or if the exercise of technical skills beyond
> "mere" programming has been necessary to arrive at the invention.

The last part is a botched attempt of explaining further techical effect,
the EPO guidelines does a better job. If some program increases the
securitylevel or decreases resourceses or time spend doing something,
then this consitutes 'further technical effect' of that program.

Even though an algorithm packing files on the harddisk does not
directly manipulate natural forces in a novel technical way to produce
this effect, even though it's referred to as a physical process above.

Hence further technical effect is not necessarily technical effect at
all. But if you want to patent such concepts then by law definition it
must be technical. 



The EPO judge Mark Schar (see 
http://swpat.ffii.org/vreji/papri/jwip-schar98/indexen.html)
did in 1998 redefine technological as an automatic repeatable process.

This definition was required since the EPO practice had removed
itself so far from the original 1978 EPO guidelines (based on and in close
agreement with the European Patent Convension EPC), that a redefinition
of 'technical' was required to patch the gab: Since it's easiere to modify
the interpretation of the legislation than revoke many thousands of patents
that are invalid under the old interpretation.


Since all e-commerce by definition will be automatic and repeatable
they are by EPO judge Mark Schar definition technical, and can thus
provide a non-obvious contribution to known technical art. 
(e.g. the art of automatic reproducible processes)

Thus when the EU claim that the proposal stops business method
patens, this is nonsense, any business method today will require
software, and the difference between patenting the business method,
or executing a business method on a computer (thus making it technical)
is null.


> What are the main differences between the approach of the proposed
> Directive and the situations in the US and Japan?

Since the proposal does not define technical or limit the meaning of
technical, the effect will be similar to that of the US and JP, where there
is no technical requirement. This is obvious from the current EPO
practice.


> What about the BT "hyper-text" patent case - can this patent
> really be valid when hyperlinks are common-place?

The real answer is that there exists prior-art for this patent (a video
recording of a demonstration of hyperlinks in the late 60'ies i think),
hence it's invalid like most other softwarepatents.


> Would the Amazon "one-click" shopping cart ordering model be
> patentable under the Commission proposal?

>The European Patent Office has yet to come to a decision on the related 
>European application, so it would not be appropriate to comment on whether 
>there is any patentable subject-matter in the application as a whole. 
>However, a patent with the breadth of claims which has been granted in the 
>United States would be highly unlikely to be considered to make a 
"technical 
>contribution" in the EU under the terms of the proposed Directive

So in this proposal to clarify patentable subject matter, they do not want 
to
clarify this issue.

Actually the EPO has given Bellboy a patent (EP738446) of providing services
over the internet. It has a similar broad scope and same technical effect as
the Amazon patent, e.g. no technical effect meaning application of natural
forces at all.

-- 
  Mvh. Carsten Svaneborg




-- 
  Mvh. Carsten Svaneborg
What patents did you infringe today?
Goto http://www.softwarepatenter.dk to find out!