confusion about terminology

[Hartmut Pilch <phm@a2e.de>]

> "Software patents" : Unfortunately, the subject is biased in itself.
> Such patents are not about software themselves. 

They are.  The claim is directed to something like "program, characterised 
by that ..." or "system and method for operating data processing 
equipment, characterised by that ...".  

The word is as adequate as "mechanics patent", "chemistry patent" etc.

If you want to build the concept of "invention vs creation" or "idea vs
work" into your term, you just build redundancy into it.  "Patent" already
implies that we're talking about classes, not about instances.

> When then need to be more precise, (for example in the title of the
> directive handed to the parliament), proponents of the patentability
> extension use the expression "Computer Implemented Invention".
> "Invention" relating to the mythical lone inventor needing protection
> against big corporations ready to copy the new device he has just
> created.

The redundante word "invention" is there to imply that the object is
patentable under Art 52 EPC, for nothing else.

See

        http://swpat.ffii.org/papers/eubas-swpat0202/kinv/


> It is urgent to restore some truth in these words, as it is too late to
> drop them.

No, these words must be fought and instead the word "software patents", 
which is both more accurate and more suitable for mass communication, must 
be used consistently.  

You can of course also, in some contexts, talk about "computer-implemented
rules of organisation and calculation" etc, as we have been doing.

> I propose to quote the expression and explain that it is
> the contraction of "functionalities implemented by Software
> components" patents:
> 1) Those patents are dealing with the underlying functionalities :
> the granted monopole prevents anybody form re-implementing those
> functionalities into any other software.
> 2) Those patents do not usually cover a complete software program,
> but only small buildong blocks. It is, among other reasons, the
> modularity of software programs that make them very vulnerable to
> patents.
> The proposed expression: "patents on functionalities implemented by
> software components" correct those two errors. 

This expression strengthens the confusion that is created by the advocates
of the "computer-implemented invention" concept.  It suggests that Art 52
EPC excludes only concrete instances (the "expression" side of the
program)  and that a "system and method for operating a computer,
characterised by that .. .something happens" is not a computer program as
such.

> It is crucial that
> people understand "software patents" (an expression that we cannot
> get rid of for simplicity reasons) as the (misleading) shortcut for
> "patents on functionalities implemented by software components".

It is crucial that the authors of this wording proposal understand that 
they have been misled themselves.
 
> "Patentability": As could be seen from Mr Ellard's speech, opponents
> to the extension of patentability are portrayed as opponents to
> patentability as such. This confusion weakens their message by
> exaggerating it. It is very important to refuse this misleading
> confusion and restate the opposition to the *extension of*
> patentability into the realm of software (as opposed to hardware). It
> also serve to remind that the EPO wants to *extend* patentability and
> not merely to harmonize or clarify it.

It is clear that an ABS patent is not necessarily a software patent. A
"system and method for operating a car break, characterised by ...  
friction .... temperature .... " is not a data processing program. However
if all you have invented is some logical concept which can also be
formulated as "program, characterised by that ...." and only the latter
claim really provides the "protection" you need, then you have a software
patent.  The logics is very simple and I don't think Ellard's sophistry
gains him very much, especially since the Commission proposal defines
"computer-implemented invention" as an invention where the novel part does
not reside in the friction and temperature etc but in the programming.
 
> "Patent": This word is mainly seen as a kind of property (intellectual
> property), that is, a kind of wealth. It is in fact a state granted
> monopoly. When writing a text, try to substitute "getting a patent" (or
> worse "being protected by a patent"!) by "getting a state enforced
> monopoly". Quite a change, isn't it?

You can sometimes write like that but not always, unless you want wooden 
language.
 
> "Protection of an invention": Same thing with a positive meaning of
> "protection", while it is in fact an "exclusive appropriation
> (seizure?) of functionalities".

Correct, but same problem as above.
 
> "Software industry": It is worthless to fight over the inclusion of an
> "industrial" reference in the text if we accept to deprive this word
> of its meaning. "Software industry", "multimedia industry",
> "Music/cinema industry" is nonsense to blur the line
> between the intellectual and physical worlds. We must be careful to
> speak about "software publisher" as intellectual works (such as
> computer programs) are published and not manufactured.

Yes, we try to avoid that.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/