Re: [Patents] debugging

[Carsten Svaneborg <svanebor@mpip-mainz.mpg.de>]

On Wednesday 28 May 2003 11:33, Erik Josefsson wrote:
>> The patenting of computer-implemented inventions is not a new
>> phenomenon: patents involving the use of software have been
>> applied for and granted since the earliest days of the European
>> Patent Office (EPO).

The 1978 EPO guidelines:
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 or a
presentation or information.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.


>> Concern has been raised that with certain EPO and national court
>> rulings, if matters are left as they stand, Europe may be drifting
>> towards extending the scope of patentability to inventions which
>> traditionally would not have been patentable.

If she had read the evolution of the EPO guidelines, then she
would have used past tense: "Europe drifted towards extending
the scope of patentability to inventions to inventions which
traditionally was not patentable".


>> If the EU does not take the step to develop its competence with regard
>> to computer-implemented inventions, then the EPO and its boards of
>> appeal will continue to be the main arbitrators of the law. This will
>> side step the democratic scrutiny of the EU.

This document seems to suggest that the Rapporteur still has a long
way to go regarding developing competence wrt. EPOs practice.


>> To harmonise and clarify the law relating to patentability of
>> computer-implemented inventions.
Law IS harmonised.


>> To stop expansion of the patents system, and stem the current drift
>> towards broadening the scope of innovation in software that can be
>> patented.

Ohh. Please yes!


>> To create an EU directive which has the advantage of providing a high
>> degree of legal certainty and uniformity across the Union.

Assuming a directive is stated in a clear objective manner.


>> How important is software to the EU economy?
Not to be confused with how important are software patents to 
the EU economy.


>> Inventions engendered as a result of R&D in the field of software are
>> important to the EU economy.

When is a software a product and when is it an invention?


>> At a time when many of our traditional industries are migrating to
>> Asia, and when we Europeans are having to rely on inventiveness to
>> earn our living, it is important for us to have the revenue secured by
>> patents and the licensing out of ideas.

It is important to have an revenue secured by steady innovation
and thus being competitative.

Please somebody explain the economics of complex multi-invention
products developed sequentially and cumulatively to the rapporteur.
She seems to think software product = chemical product.


>> During this time all sectors of the software industry, including the
>> open source movement, have developed strongly. Patents are available
>> only for programmes that offer a new technical solution.

Many trivial patents (majority?).

What is "technical solution", and why is the progess bar and
Microsofts patent on a bar with a "start" button technical solutions?


>> Programmes which produce an aesthetic outcome

Graphics elements are being patented.  E.g. EP689133.
Virtual reality information presentation such as EP663089


>> components of programmes(code sequences) which of themselves
>> do not deliver any technical solution, algorithms and
Patents covers software components usually not programs.


>> underlying programming ideas will not, as now, be patentable.
EP0485934  Software development procedure 

Go look at some patents at ep.espacenet.com .

Possibly the Rapporteur subjective interpretation of
"technical contribution" differs significantly from the
EPOs subjective interpretation?


>> Programmes which underpin non-technical inventions will also not be
>> patentable, in particular those concerned with non-technical business
>> methods (such as"reverse auction" arrangements) along with the methods
>> themselves. Although these are widely patented in the United States,
>> in Europe it has been shown that there to be no case for such
>> extension of patents in Europe.

As long as "technical" is not defined, it can always be defined to
make this statement true. But with a reasonable definition of
"technical" it is false.

see:

The First-Mover Monopoly, Likhovski, Spence, og Molineaux.
http://www.oiprc.ox.ac.uk/EJWP0500.pdf

Except:
The law in relation to business method patents in the United Kingdom
and European Patent Offices has not changed. Away of doing business
as such  cannot be protected; however, some protection for business
methods may be obtained by claiming a new, inventive, technical method
of implementing a business method. This is particularly relevant in the
eCommerce arena where there have been and continue to be technical
innovations.


K. Beresford, World Patent Information 23 (2001) 253-263
European patents for software, E-commerce and business
model inventions.

Abstract: It is commonly held that software, e-commerce and business
models related inventions are inhenrently unpatable in Europe. In
reviewing the situation, this article emphasises the large number of 
inventions in this field which hav in fact been patented through the
EPO or through national patent offices in Europe. [..] He shows that,
if proper attention is paid to both the substance and the form of
claims and description, to direct the reader to the techincal problem
and its solution, effective protection is in fact very often available.

He gives the following examples:

Examples: business management and financial systems:
EP407026 (Reuters)
EP209807  (Sohei) 
EP701717  (Shepherd)
EP838063 (Realkredit Danmark AS)

(The last one was subsequently retracted. Because the Realkredit DK
patent was a business method, they were sued by a competitor claiming
it to be invalid, but the case and the patent were both dropped when
the competitor and Realkredit later merged.)

Some more examples:
http://www.iusmentis.com/patents/businessmethods/epoexamples/

>> The EU directive should therefore provide a restrictive statement of
>> the law. Software programmes that produce merely an aesthetic outcome,
>> a component of programmes (code sequences) which themselves do not
>> offer a technical solution, algorithms, underlying programming ideas
>> and programmes that underpin non-technical inventions, should not be
>> patentable.

Should not?
A restrictive statement is "can not"!


>> As current law is not clear, uncertainty and lack of transparency
>> would remain. This uncertainty is a brake on growth in the industry,
>> and is allowing the scope of what is patentable to expand, contrary to
>> wishes expressed throughout the EU.

And "harmonising" the expansion is better?


>> Failure to adopt will also mean that the EPO may act by
>> itself, thus side-stepping the debate and democratic scrutiny of the
>> EU route.

Only an  objective definition of "technical contribution" can
restrict EPO sidestepping the debate, after all their practice
is evolving by great leaps - sideways. An objective definition
creates a fixpoint that the practice can converge to, rather
than harmonising a divergent practice.


>> A patent protects an invention and copyright protects the particular
>> expression of a computer programme, ie the actual lines of code
>> written by a programmer.

A patent protects a software component. A software product has
many components. If 10 companies each has 10 patents in a 100
component software product, who protects what?


>> An EU directive should not allow the extension of patentability, but
>> neither should it exclude patent protection altogether. Small software
>> developers should not have to face a minefield of poorly granted
>> patents for obscure or obvious patents.

"Should not have to"?    is this socalled restrictive language again?


>> The directive must allow open source software to flourish. Indeed many
>> large corporations rely on the inventiveness of small business. They
>> too must be able to turn their creativity into returns on their
>> investments. Small companies and open source software developers
>> should be able to exploit their inventiveness. The report will include
>> a review clause to ensure that the European Commission monitors and
>> reports on the impact of the EU directive for SMEs and software
>> developers.

So large enterprises gets software patents, and SME and OSS 
developers gets wishfull thinking and period reviews?

-- 
  Mvh. Carsten Svaneborg