Re: Your notes on directive COM(2002)92

[PILCH Hartmut <phm@a2e.de>]

Dear Ms McCarthy,

Xavi Drudis Ferran <xdrudis@tinet.org> invited Ms Arlene McCarthy MEP

> We're sorry if it is too long, but we felt the importance of the issue
> justifies starting the open debate you were proposing in as clear
> terms as possible. We would like to invite you to comment on our views
> in a mailing list which has been for the last years holding much
> public debate on the usefulness or danger of software patents,
> concrete criteria to apply, news and caselaw.

I would especially like to know: are the following two claims
patentable subject matter or not under the rules which you are proposing?

  EP 266049:
      An ordered redundancy method for coding digital signals, the digital
      signals taking a plurality of different values, using two types of
      runlength code (R, R'), the method comprising the steps of.
       1. utilising the first type of runlength code (R) for coding a 
runlength
          of the most frequently occurring value followed by the next most
          frequently occurring value;
       2. utilising the second type of runlength code (R') for coding a 
runlength
          of the most frequently occurring value followed by any value other 
than
          the next most frequently occurring value; and
       3. when the second type of runlength code is used, following the 
runlength
          code value by a code value indicative of the amplitude of said other
          value.

Does the claim of EP 266049 describe an algorithm?

What "technical contribution", if any, is there beyond the algorithm?

JURI Amendment proposal 6 for recital 13c says:

  Furthermore, an algorithm is inherently non-technical and therefore
  cannot constitute a technical invention. Nonetheless, a method
  involving the use of an algorithm might be patentable provided that
  the method is used to solve a technical problem. However, any patent
  granted for such a method would not monopolise the algorithm itself or
  its use in contexts not foreseen in the patent.

I assume that the claim of EP 266049 monopolises the algorithm "only"
in contexts foreseen in that claim, namely that of general purpose
computing.  In other words, the algorithm itself is monopolised.

So what does the directive proposal exclude from patentability?

Where is the "restrictive statement of the current law"?

Some real restrictive statements can be found in caselaw of the EPO
itself, e.g. true model cases "from its earliest days", such as

        http://swpat.ffii.org/papers/epo-t850022/

as well as somewhat less straightforward recent cases, such as

        http://swpat.ffii.org/papers/epo-t990094/

both of which are more in line with the CULT proposal than with the
proposals espoused by you and your colleagues Würmeling and Harbour.

What about 

  EP 803105:

      A network-based sales system, comprising at least one buyer computer for
      operation by a user desiring to buy a product; at least one merchant
      computer; and at least one payment computer; the buyer computer, the
      merchant computer, and the payment computer being interconnected by a
      computer network; the buyer computer being programmed to receive a user
      request for purchasing a product, and to cause a payment message to be 
sent
      to the payment computer that comprises a product identifier identifying 
the
      product; the payment computer being programmed to receive the payment
      message, to cause an access message to be created that comprises the
      product identifier and an access message authenticator based on a
      cyptographic key, and to cause the access message to be sent to the
      merchant computer; and the merchant computer being programmed to receive
      the access message, to verify the access message authenticator to ensure
      that the access message authenticator was created using said 
cyptographic
      key, and to cause the product to be sent to the user desiring to buy the
      product.

?

Is this a business method?

JURI Amendment 4 says:

  Accordingly, a computer-implemented business method or other method in
  which the only contribution to the state of the art is non-technical
  cannot constitute a patentable invention.

Is EP 803105 a "business method with a technical contribution to the
state of the art" ?

JURI Amendment 7 says:

  This Directive simply clarifies the present legal position having
  regard to the practices of the European Patent Office with a view to
  securing legal certainty, transparency, and clarity in the law and
  avoiding any drift towards the patentability of unpatentable methods,
  such as business methods.

Which drift is to be prevented by this statement?

If the EPO's practise is considered to be the "present legal
position", how one at the same time codify this practise and avoid
patenting business methods?  How can one speak of a "drift toward
patentability of business methods" when such methods are already
considered to be a part of the "present legal position" ?

Where is the significant difference between this proposed directive
and the US practise?

Note that the two cited European Patents have US cousins with the same
claim wording, which have caused considerable trouble in the USA.  One
has led the JPEG standard to cease being an international standard.
The other has squeezed money out of many small e-commerce businesses.
The owners of these patents have kept quiet in Europe so far.  They
may be waiting for you to supply them with the missing "legal
security".

What justification is there for barring European software developpers
and citizens from putting abstract ideas to use on the standard
communication tool of today's civilisation?

Your public statements suggest that you want to make patents such as
the above-cited ones impossible in Europe.

If this is so, what means do you propose for achieving the goal?

Could you please explain, possibly using the

        legislation benchmarking test suite
        http://swpat.ffii.org/analysis/testsuite/

or parts of it as an analytical framework?

Given your public demands for an "open democratic dialog", as documented
at

        http://swpat.ffii.org/events/2003/europarl/05/contrib/amccarthy/

isn't it now time for you to explain in clear terms which an expert in
the field of computing can understand, based on examples rather than
on ambiguous abstractions, what should be patentable and what not?

What about giving the explanation not only to JURI members but to this
public forum, which has assembled a fair amount of competence on
questions of software patents in Europe and which is at the heart of
one of the largest petitions ever made to the European Parliament?

Is this Parliament committed to "open democratic dialog"?

Anxiously awaiting reply.

Yours sincerely.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/