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Tuesday, 3 October 2006

PATENT REFORM: DEMOCRACY IN MELTDOWN


Patent reform: democracy in meltdown

Richard Evans (IPWorldOnline) has tipped the IPKat off about the latest round of discussions concerning the proposed European Patent Litigation Agreement (EPLA). The UK's Chartered Institute for Patent Attorneys (CIPA) has now added its voice. In his speech to the European Parliament last week (noted briefly here by the IPKat), Charles McCreevy urged MEPs to back the EPLA, saying it would bring about a “better, cheaper, more reliable patent system”. Some MEPs have since tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic. Respected UK Patent Attorney Vicki Salmon, on behalf of CIPA, immediately responded:

"Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward. ... "
The EPLA would enable a single European Patent Court to be created, concerning which Vicki said:
"We in the Institute are in favour of such a move provided, of course, the details are practical and do not result in an arrangement that is too expensive".
Although he is a firm believer in democracy, the IPKat sometimes despairs of its ability to address detailed issues such as patent law. If even Members of the European Parliament can't grasp the issues clearly, what hope is there that the vast electorate of the European Union will be sufficiently well-informed to give them a mandate for change? Merpel adds, the MEPs shouldn't be allowed to interfere with the delicate mechanisms of patent law if they can't even decide to ditch either Strasbourg or Brussels and make do with just one legislative base.

10 comments:

Cristian said...

Dear IPKat

I refer to your post today regarding the European Patent Litigation Agreement.

"Some MEPs have since tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic. Respected UK Patent Attorney Vicki Salmon, on behalf of CIPA, immediately responded:

"Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward. ... "

The EPLA would enable a single European Patent Court to be created, concerning which Vicki said:

"We in the Institute are in favour of such a move provided, of course, the details are practical and do not result in an arrangement that is too expensive".

Although he is a firm believer in democracy, the IPKat sometimes despairs of its ability to address detailed issues such as patent law. If even Members of the European Parliament can't grasp the issues clearly, what hope is there that the vast electorate of the European Union will be sufficiently well-informed to give them a mandate for change? Merpel adds, the MEPs shouldn't be allowed to interfere with the delicate mechanisms of patent law if they can't even decide to ditch either Strasbourg or Brussels and make do with just one legislative base."

On this post I would make the following comments in the hope of trying to present a balanced debate for IPKat readers. The statement that CIPA considers the EPLA would, to quote, 'be a sensible step forward' has to be considered having regard to the position of the CIPA and the fact it represents a vested interest group. No doubt, it would represent 'a step forward' for the CIPA, but although it may come as a surprise to some, patent policy should not be governed by whether something is a step forward for patent attorneys. Furthermore, there are more fundamental considerations as to whether the EPLA is a 'step forward' then simply whether it is: a) practical; and (b) cost effective. For example, is the EPLA the 'appropriate' structure with which to introduce a single patent court in Europe and what will be the effect of the EPLA on the development of substantive patent law?

I strongly disagree with the presentation of MEPs as individuals who are unable to grasp the issues at stake with patent reform. As was shown with the story of the failed Software Patents Directive there is a good understanding amongst many MEPs of the problems with the current patent system in the EU and the proposals put forward by the commission and others to reform the patent system in the EU. If we value democracy, we must accept that laws should be made on the basis of what is in the 'public interest' by those who are directly accountable to the electorate. Here, there are no short-cuts.

There are already significant constitutional issues with the role of the European Patent Office in the existing system adopted by signatories to the European Patent Convention. A number of these issues were raised by MEPs last year and, ironically, the EU Commission itself has expressed concerns about the conduct of the EPO and its active 'policy' role. The constitutional issues stem from the fact that the EPO is not a democratically accountable institution in any modern sense of the word, yet is responsible for granting patents which have an impact on the citizens of signatory states. At present it is an administrative office which also, in granting patents, through the EPO and the Board of Appeals of the EPO, interprets the European Patent Convention. In carrying out this latter function it has adopted an extremely broad notion of 'technical effect' resulting in a de facto extension of patentable subject matter and the granting of more patents. If the CIPA is not convinced by the intellectual ability of MEPs, it may be convinced by the intellectual ability of an English silk, Prescott QC, who stated in his judgment in the case of CFPH last year that:

"[d]espite the prohibition on granting patents for computer programs as such….the EPO has granted more than 40,000 of them"

The EPO has taken upon itself to make decisions which 'potentially' result in the unconstitutional extension of patentable subject matter. As an institution which is not within the EU framework of institutions and which is not democratically accountable in any modern sense of the word, it can do this without sanction. Furthermore, in doing so, it is creating a body of 'potential' jurisprudence emanating from a body which, due its dual function, cannot claim sufficient independence for transparent and ethical law making - it is the body which makes money from granting patents.

I say 'potentially' above because, in the current EPC structure, it is the national courts of the members states who ultimately interpret the EPC and, as Precott QC succinctly expressed last year, the EPO's decisions are not binding in any way on the national courts. Therefore, where we are today, the true impact of the unconstitutional extension of the patent system by the EPO in Europe is not being felt. HOWEVER, with the EPLA, in its current form, there is a strong probability that the de facto extension of patentable subject matter by the EPO could become the reference material for the new single Patent Court outlined in the EPLA.

An objective review of the current problems of the EPC/EPO model leads one to query the CIPA line on the EPLA. Any individual examining the EPLA who is interested in democratic law making should be concerned.

1) The EPLA is a system which is outside of the control of the EU institutions and the democratically elected parliament. It would result in a single court for disputes over the validity of patents issued in the signatory states which is not accountable to an EU institution. In other words, this would create a further institution which has similar issues of unaccountability as the EPO.

2) One of the major burdens of the patent system on competition is the cost of defending (even spurious claims) and litigating patent claims. Therefore, any new litigation agreement between member states has to provide clear cost benefits to claimants and defendants. We have seen no objective and independent impact assessment carried out showing that, for industry as a whole (and not just large companies), a single court would offer cost savings.

3) The idea that a central patent court is beneficial for the patent system as a whole needs further consideration. Supporters of the EPLA try and make comparisons with the central federal patent court in the US. However, a number of US academics are currently questioning the benefits of having one centralised court in the US. More thought needs to be had on such an important issue and this discussion really should take place within the current EU legislative framework which at least has a modicum of democratic control. The issue of a central court needs to fully debated in the context of the Community Patent debate.

4) The current EPLA proposal does not guarantee an independent judiciary. This failure is absolutely critical. Any independent court needs to be staffed by legally qualified members who have sufficient independence from any body which has an economic interest in the granting, preparation of or litigation of patents. This, for anyone who has a remote interest in democracy is common sense but this factor has been overlooked by the supporters of the EPLA. The EPLA proposals, as drafted, would allow for members of the EPO to become members of the proposed single court. There has to be a conflict of interest here. There must be a clear separation of powers between those responsible for the administration of the system and those responsible for determining questions of validity. Furthermore, the language of the EPLA does not go far enough to exclude from the membership of the proposed single patent court others who might have or have had an economic interest in a body interested in the granting, preparation of or litigation of patents.

5) Without proper controls on the selection of members of a single court, there is a real danger that instead of democratically elected institutions such as the European Parliament (which is accountable to the public and hence the public interest) determining what should and should not be patentable, an undemocratic, non-EU and potentially non-independent court could decide the direction of future patent policy in Europe. If the past record of the EPO is anything to go by, where there is a similar conflict of interest and lack of accountability issues, adopting the EPLA could be extremely detrimental to European growth and innovation.

In summary, although at first glance the EPLA appears an attractive 'stop-gap' solution to the currently stalled Community Patent, the current proposals on the EPLA lack the basic tenants of what makes a transparent and democratic law making system. Although there may be a motion calling for the scrapping of the EPLA, there are also motions which call for more time and consideration to be had on the EPLA and for some of the concerns of the existing proposals on the EPLA to be further debated. This is not democracy in 'meltdown' but democracy 'in action'.

Cristian

www.lasporg.info

Gerontius said...

Cristian

While you may have some valid points, I'm afraid your entire long letter must be immediately consigned to the dustbin by trying to support those points with false statements.

Firstly, Peter Prescott QC absolutely positively did not say that the European Patent Office has granted 40,000 patents on computer programs as such. Your careful misquoting does him an injustice. The full sentence actually reads: "Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them". Mr Prescott in no way supported the statement but was merely quoting interest groups. In fact, his judgment does not refuse the application in question for being a computer program as such, but for being a business method as such, so the relevance of the decision as a whole to your point on "software patents" is questionable. Mr Prescott was also largely supportive of the EPO's practice in which patents it did or did not grant, although he decided that a different approach to deciding the boundary between patentable and unpatentable should be used.

Your further suggestion that "refusal of the 'Software Patents' Directive shows that there is a good understanding amongst many MEPs of the problems with the current patent system in the EU" is so misguided as to be laughable. All it showed was that when you have two opposing lobby groups you end up with a complete breakdown of the system. The final proposal made nobody happy, and was resoundingly rejected by all sides. During the process, many, many of the proposed amendments to the CII Directive illustrated such basic misunderstandings of patent law that patent professionals all over Europe (including Mr Prescott QC) watched the proceedings with real dread for fear of what mess might result from some patchy and ambiguous Directive.

Next: stop spouting the mantra that the EPO are illegally (or unconstituionally as you put it) extending the realm of patentable subject matter. Much like everyone else, they are simply struggling to interpret the EPC and those mysterious words "as such". Just because you happen to disagree with the direction that has been taken by the EPO, the UK courts and the German courts does not mean that any of these institutions are commiting cardinal sins. Why can you not accept that these people have given at least as much thought as you to the question of what makes something patentable and that maybe, just maybe, they have a point as well?

Finally, I am getting sick and tired of the constant false accusations that European patent attorneys and the EPO are trying to make everything (and have a vested interest in making everything) patentable. Such accusations serve no good since they result in people mistrusting the cogent advice of the very people who understand the legal side of the patent debate. If only the software programmers, the economists and the patent professionals would just sit down and talk, then agreement might be reached. Unforunately, as your post confirms, the anti-patent brigade seem intent on alienating the very people who might be willing to support them if they only explained what it was they actually wanted. If you can tell me exactly where you would like the boundary between patentable and non-patentable computer inventions to lie, I would love to hear it, but there seems to be no clear goal by groups such as the FFII except to block any and all developments in patent law. And do not say that anything using software should be unpatentable; learned judges across Europe recognise that this cannot happen since computers are an essential part of modern industry. Give us a sensible proposal and maybe there will be the possibility of a debate.

Thank you for listening. Hopefully my comments will enable you to refine your own so that I can actually work out what it is you want.

Democraticus said...

Intresting,

Who is US? Legislators have to negotiate with patent attorneys? Do you recognise a patent system as an instrument for the benefit of the market?

"And do not say that anything using software should be unpatentable; learned judges across Europe recognise that this cannot happen since computers are an essential part of modern industry. Give us a sensible proposal and maybe there will be the possibility of a debate."

Sorry. The problem is not two-sided industry lobbying but vested interest of patent professionals who control the institutions ...and know what's best. Sounds undemocratic. And indeed, it is: "Merpel adds, the MEPs shouldn't be allowed to interfere with the delicate mechanisms of patent law". Because patent law is YOURS.

"And do not say that anything using software should be unpatentable; learned judges across Europe recognise that this cannot happen since computers are an essential part of modern industry. Give us a sensible proposal and maybe there will be the possibility of a debate."

Who invited patent professionals to the party? Who wanted patent protection for software? Your bias is represented by your thinking. Who told you that a status quo needs to be kept? Who developed the status quo? Market does not respect YOUR consensus, MEPs do not respect YOUR consensus. And judges as defenders of 'reason of state' or 'reason of patent attorney'? The example shows why EPLA is wrong. Because the EPO cannot be trusted to serve the market and respect democratic will. YOU and the EPO expect the legislator to adopt YOUR consensus. Substantive patent law is not YOUR business.

And do not say that anything using software should be patentable; market player across Europe recognise that this cannot happen since computers are an essential part of modern industry. Give market players a sensible proposal and maybe there will be the possibility of a debate. ...ehmm no...

I don't have to discuss with patent attorneys or institutions. Patent attorneys are no legitimate stakeholders in patent law. They may put forward legalistic reasons for one or the other. Economics and market knowledge is not their business. Don't you think patent judges will refuse to answer where patents are needed because they are not qualified to talk about that? Why and where do YOU need patents?

---
One day our legislator decided to abolish patent law. Market embraced the new rules of competition. Free competition. A patent attorney asked: What about US? And a patent office official added 'You cannot abolish patent protection. What happens to US? WE developed patent law and WE like it. YOU cannot abolish it. Market needs it. Please get them educated about the inherent values of patent law! Please get the legislator out of charge. MPs shouldn't be allowed to interfere with the delicate mechanisms of patent law. And do not say that anything should be unpatentable; learned judges across Europe recognise that this cannot happen since patents are an essential part of modern industry. Give us a sensible proposal and maybe there will be the possibility of a debate.


Okay: my compromise proposal is to get rid off software patents and keep software development safe from patents. Doesn't that sound reasonable to you?

Or: How would you exclude software patents? Do you have a better approach than these IT lobbying bodies?

Cristian said...

Dear “Gerontius”

Please see my responses (bold) to your thought provoking comments. Regards….

p.s….I think ‘Democraticus’ had some ‘valid’ points…



Cristian

While you may have some valid points, I'm afraid your entire long letter must be immediately consigned to the dustbin by trying to support those points with false statements.

Firstly, Peter Prescott QC absolutely positively did not say that the European Patent Office has granted 40,000 patents on computer programs as such. Your careful misquoting does him an injustice. The full sentence actually reads: "Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them".

I think it is important to quote the full statement of Peter Prescott QC.

“130. Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them. It is said that not a few of these pertain to business methods as well. From the point of view of the applicants in our case, if there is any chance of getting such a patent it may be said to be a rational business choice to try it. If not, their competitors might. I have pointed out that patents that are wrongly granted can be very expensive to challenge, and perhaps beyond the means or inclination of small and medium enterprises. An accumulation of patents of that sort (sometimes known as a “patent thicket”) may be a serious barrier to entry.”

Adopting your interpretation, Peter Prescott QC did not dispute that the number of 40,000 software patents had been granted. He made his statement for a reason. The background is clear from examining the whole quote and reading the whole of the CFPH judgement. I am sure that a detailed study of the patents granted by the EPO would confirm that it is true that 40,000 plus software patents have been granted. I do not need to argue about numbers because even if 1 software patent had been granted by the EPO it would represent a grant against the clear purpose behind the exclusions in Article 52 of the EPC (as I go on to discuss below).


Mr Prescott in no way supported the statement but was merely quoting interest groups. In fact, his judgment does not refuse the application in question for being a computer program as such, but for being a business method as such, so the relevance of the decision as a whole to your point on "software patents" is questionable. Mr Prescott was also largely supportive of the EPO's practice in which patents it did or did not grant,

Given your accusation that I mislead the reader about Mr Prescott’s statements in his decision, I am very surprised by your statement. Prescott does not make any statement suggesting that the EPO’s practice in granting patents in relation to software is the correct approach. In fact he makes it very clear that, adopting a purposive approach to the interpretation of Article 52 of the EPC, patents should not be granted for software as such. He also goes on to clarify in paras 25 and 35:

“25. Article 52(3) indicates that a subject-matter is excluded ‘only to the extent’ that a patent relates to it ‘as such’. This is confusing. In the past it has led some people to think that you should be able to patent any new, non-obvious idea, so long as what is claimed as the invention does not consist only of excluded subject-matter. According to that reasoning you could patent an excluded item e.g. a computer program by the formal device of claiming some physical artefact (e.g. “A magnetic disk in which my program is stored”, or “A computer when operating under the instructions of my program”). And indeed if it were just a question of interpreting Article 52(3) as if it were an Act of Parliament, they might have been right. However, it is not an Act of Parliament, and they were not right.”


“35. The same approach cannot be taken to computer programs. The reason why computer programs, as such, are not allowed to be patented is quite different. Although it is hotly disputed now by some special interest groups, the truth is, or ought to be, well known. It is because at the time the EPC was under consideration it was felt in the computer industry that such patents were not really needed , were too cumbersome (it was felt that searching the prior art would be a big problem ), and would do more harm than good . I shall not go into details here but it is worth noting that the software industry in America developed at an astonishing pace when no patent protection was available . Copyright law protects computer programs against copying. A patent on a computer program would stop others from using it even though there had been no copying at all.”

It is important to note that Prescott QC challenges the interpretation of ‘some people’ of Article 52 and makes it quite clear that, despite the efforts of certain lobbyists (he doesn’t use the word, but please give him credit for his diplomacy when he says ‘special interest group’) to cloud the position, the truth behind the rationale for the Article 52 computer program exclusion ‘is, or ought to be, well known’. The rationale for anyone who wants to conveniently forget, as Prescott quotes in paragraph 35, was inter alia ‘they would do more harm than good’. Harm is a strong word and even I, with my limited intellect, can interpret this as meaning that our forefathers had the sense to realise the software patents were not beneficial. By the way, the interpretation which Prescott QC challenges is the interpretation adopted by the EPO in that, its very wide interpretation of ‘technical effects’, has led it to allow software to be foreclosed when claimed with what is nothing more than a computer, i.e. a computer-implemented invention in the strict sense where the patent claims involve nothing outside of software and a computer (or similar apparatus). If you wish I can provide you with recent statements earlier this year from the EPO which clearly confirm that the EPO’s interpretation is of the type rejected by Prescott QC.

He also undertakes a detailed analysis about the approach to interpreting Article 52 and makes it clear that ‘technology’ is not positively defined in Article 52 but defined negatively. He goes on to explain that although people may use ‘technology’, ‘technical effects’ etc as shorthand, that at the end of the day these are not expressions defined in Article 52 and reference must always be had back to Article 52 in considering whether something is patentable subject matter.

“I mention this near the outset of this judgment because it is important. If you look at the case law on the subject, both here and in Munich, you will find many references to “technical contribution”, “technical result”, and so on, being touchstones by which these cases are decided. The use of the word ‘technical’ as a short-hand expression in order to identify patentable subject-matter is often convenient. But it should be remembered that it was not used by the framers of the Patents Act 1977 or the European Patent Convention when they wanted to tell us what is or is not an ‘invention’. In any case the word ‘technical’ is not a solution. It is merely a restatement of the problem in different and more imprecise language. I am not claiming that it is wrong to decide cases with reference to the word ‘technical’. It happens all the time. What I am saying is that it is not a panacea. It is a useful servant but a dangerous master.” (paragraph 14)



although he decided that a different approach to deciding the boundary between patentable and unpatentable should be used.

Your further suggestion that "refusal of the 'Software Patents' Directive shows that there is a good understanding amongst many MEPs of the problems with the current patent system in the EU" is so misguided as to be laughable. All it showed was that when you have two opposing lobby groups you end up with a complete breakdown of the system. The final proposal made nobody happy, and was resoundingly rejected by all sides. During the process, many, many of the proposed amendments to the CII Directive illustrated such basic misunderstandings of patent law that patent professionals all over Europe (including Mr Prescott QC) watched the proceedings with real dread for fear of what mess might result from some patchy and ambiguous Directive.

Next: stop spouting the mantra that the EPO are illegally (or unconstituionally as you put it) extending the realm of patentable subject matter. Much like everyone else, they are simply struggling to interpret the EPC and those mysterious words "as such". Just because you happen to disagree with the direction that has been taken by the EPO, the UK courts and the German courts does not mean that any of these institutions are commiting cardinal sins. Why can you not accept that these people have given at least as much thought as you to the question of what makes something patentable and that maybe, just maybe, they have a point as well?

Firstly, I would ask you to read my comments again. You will see that I talk about two things in my comments. I explain that I believe the EPO is creating a de facto jurisprudence which goes beyond a purposive interpretation of the EPC on Article 52 and that the status of this jurisprudence, given the EPO decisions are not binding on national courts, has not, as yet, resulted in a de jure change in substantive patent law. However, given your expertise of the patent system, you will understand full well what impact the body of EPO “jurisprudence” would have on the legitimisation of software patents if it were to become, through a lack of an independent judiciary or otherwise, the case law adopted by a single European patent court in Europe. The second thing I talk about is that, because of the role of the EPO in granting patents and how the administrative appeals are dealt with within the EPO, and not an external body, the way the EPO interprets the EPC has a profound effect on the number of patents granted. Having a little knowledge of constitutional law, for me the dual role of the EPO is problematic. It grants patents but it also has a quasi-judicial role in interpreting the EPC. However, it is not only me that is cautious about the role of the EPO and its suitability as a judicator of what should and should not be patentable. Prescott QC also states:

“That said, the EPO, beyond having certain limited powers to revoke patents it granted itself, has no jurisdiction over the patent law of the U.K. The EPO is not the European Court of Justice, and Parliament has not seen fit to confer such powers upon it. On matters of patent law the role of the EPO is persuasive, not prescriptive . The EPO is not equipped with a staff of expert economists who are competent to decide if the patenting of business methods, or computer programs, would be good for our country and even if it was it would still be for our Parliament to decide. So, although we should pay careful attention to EPO decisions, and the decisions of other Convention courts, we are not bound to follow them blindly” (para 56)


Finally, I am getting sick and tired of the constant false accusations that European patent attorneys and the EPO are trying to make everything (and have a vested interest in making everything) patentable. Such accusations serve no good since they result in people mistrusting the cogent advice of the very people who understand the legal side of the patent debate.

I am sorry, but from my experience, reading plenty of papers including patent attorney blogs and other material, a large number of patent attorneys (or certainly the groups speaking on their behalf) cannot separate their economic interests from an analysis of what should and should not be patentable. Although I think patent attorneys have an extremely valid role in assisting in any review of how patents are granted, filed, litigated etc (i.e. questions relating to the administration of the patent system), I do not think that they have the sufficient independence to contribute to an objective debate on what should be the content of substantive patent law. Any dilution of what is excluded subject matter only serves to benefit patent attorneys. I would love for you to provide a cogent explanation of how you believe that patent attorneys do not have a conflict of interest in this discussion.


If only the software programmers, the economists and the patent professionals would just sit down and talk, then agreement might be reached. Unforunately, as your post confirms, the anti-patent brigade seem intent on alienating the very people who might be willing to support them if they only explained what it was they actually wanted.

Your statement is a generalisation and factually incorrect. It shows you have not spent the time to actually research what my position is (perhaps when you have the time you could read my piece earlier this year on software patents which you can find on my blog www.lasporg.info). I am not against patents per se. I am therefore not in any anti-patent brigade. Unfortunately, this kind of statement of trying to lump those seeking to make an objective and not self-serving analysis of the patent system as ‘anti-patent brigade’ individuals is an example of how the pro-software patent lobby seek to denigrate legitimate and moderate comments on patent reform. I actually state in my previous articles that I am not against: a) patents and b) computer-assisted (not implemented) inventions. I also provide a detailed proposal for how ‘as such’ and ‘to the extent’ should be interpreted if adopting a purposive approach to the EPC and explain what I believe is the right approach for dealing with hybrid inventions which is consistent with the spirit of Article 52. You may wish to read this proposal. In other words, I have clearly stated my position. Not only have I clearly stated what I believe in but many groups involved in the discussions relating to the failed software patents directive provided detailed documents setting out their concerns of the proposals. Since you seek to single out the FFII, although I do not speak for the FFII, from my knowledge, the FFII was one of the few groups to actually conduct a detailed analysis of the proposals and to come up with 10 clear points of concern and suggestions for amendments to the ‘common position’ which, unsurprisingly, were very close to how Prescott QC stated the EPC should be interpreted, i.e. clear definitions and not vague concepts of ‘technical contribution’ etc.

If you can tell me exactly where you would like the boundary between patentable and non-patentable computer inventions to lie, I would love to hear it, but there seems to be no clear goal by groups such as the FFII except to block any and all developments in patent law.

Please see my comments above. This is simply propaganda (unless by ‘development’ you mean ‘self-serving’ development for patent attorneys and others).

And do not say that anything using software should be unpatentable; learned judges across Europe recognise that this cannot happen since computers are an essential part of modern industry.

I have never said this. You have not understood my position. I urge you again to read in more detail my detailed critique of software patents in which I state quite clearly (and encourage) a clarification of the law to allow for inventions which involve software. I actually state that the presence of software should not prevent an invention being patentable if it satisfies the other criteria for patentability as long as the software element itself is not foreclosed (monopolised).


Give us a sensible proposal and maybe there will be the possibility of a debate.

Thank you for listening. Hopefully my comments will enable you to refine your own so that I can actually work out what it is you want.

Lastly, what I would say (although I perhaps am over optimistic) is that, since you read physics at such a prestigious university as Oxford, this would (I rudely make the assumption) entail you having: a) an understanding of how the furtherance of science (and the arts) is important for humanity as a whole; and b) that mathematics should be kept free for all and should not ‘be owned’ by corporations. If you have grasped these concepts from your years of study you may realise why many computer ‘scientists’ take objection to people trying to extend patentable subject matter to cover algorithms and ideas (functionality), which is in essence, what many granted software patents do. Maybe you should read one of the many Richard Stallman talks on the danger of patenting software, e.g. http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html. I would also recommend Ben Klemens book, “Math You Can't Use: patents, copyright, and software (peer-reviewed book) November 2005”. See http://ben.klemens.org/

Anonymous said...

I am not sure how the issue of the patentability of software is particularly relevant to a debate relating to the possible direction that the EPLA may take but it seems to be dominating this thread.

Cristian argues that the patent attorney profession has a vested interest in the EPLA, and therefore, apparently, its comments are of no relevance. Presumably, the same comment could be addressed to the free software movement that they have a vested interest in preventing all patents in the field of computer software. I would be more of the opinion that patent attorneys have an in depth knowledge of existing patent litigation systems, probably greater than any other body, and therefore comments originating from this body should be taken note of.

Clearly, in considering any potential change to the current litigation arrangement in Europe, consideration has to be given to all the potential interests. I would say that the current arrangement of national courts is one which plays into the hands of large industry (for Cristian's benefit, read the hated Microsoft) such that they are the only patent owners who can enforce their rights effectively. Presently, a private inventor, who has managed somehow to afford the enormous costs of protecting his/her invention across Europe is faced with the financial burden of ensuring that unauthorised users of that invention are stopped. Litigation in the UK, that will be a million pounds madam. Litigation in Germany, well say that the infringer is a multinational and so the Streitwert is set at the maximum € 30 million, that will be another million or so, please sir. We will have to forget about Sweden, Spain, Greece or Italy for now but when you have won in the UK and Germany (in five years time) you will have enough money to sue there as well. Ah, forgot about the limitation period. Never mind.

The current European system is not compatible with the open market system decided democratically and needs to be changed. Only the EU, as a whole, can change the system to provide for a suitably qualified Judiciary to decide on patent issues on a European basis.

One last comment - what have you got, Cristian, about patent algorithms. If I develop an algorithm which enables me to transmit good quality voice signals over a radio connection at half the band width of existing algorithms, why should I not be able to benefit from the fruits of my endeavour and earn my royalties from the Nokias of this world.

Anonymous said...

"If I develop an algorithm which enables me to transmit good quality voice signals over a radio connection at half the band width of existing algorithms, why should I not be able to benefit from the fruits of my endeavour and earn my royalties from the Nokias of this world."

Suggest you read the book Cristian recommended: Ben Klemen, "Math You Can't Use: patents, copyright, and software".

Cristian said...

I am pleased to see my original post has sparked a mini debate. It would be good if you could identify yourself.

In respect of your comments I would briefly comment as follows:

1) My concerns about the current proposals for the EPLA go much further than issues relating to the effect on substantive patent law. If you see my original post, you will see what are ‘some’ of my concerns on EPLA. Substantive law is but one.

2) I really wish (no offence) people would read what I write with care. I do not say at all that patent attorneys’ comments are, to quote you, of ‘no relevance in the EPLA debate’. Far from it. I actually full heartedly agree with what you say about patent attorneys when you say they have a great deal of knowledge about the patent litigation system and that they have a role to play in this debate. If you read my prior posts, you will see that my point is not that patent attorneys do not have a role, they do, it is more what role they should have. Here I think the value of patent attorneys is in contributing to administrative questions regarding the workings of the litigation system and not on the policy on substantive patent law. As Prescott QC said (I paraphrase), the ONLY justification for the granting of patents is that they are for the good of the public. This is a fundamental principle long forgotten or not evidenced by those within the system who make a living from it. The truth is that it should NOT be corporations who have the say (although the reality is different) in what should and should not be patentable. Instead, it is the public (i.e. society as a whole) that SHOULD decide what should be patentable. Therefore, the debate about substantive patent law is a debate for all stakeholders, but clearly some have more of a vested interest than others. Furthermore, it is not right (IMHO) to single out the FSF ‘like’ bodies in that software patents affect ALL companies AND individual developers who write software regardless of licensing/distribution models. It is just that software patents are more of a threat to FOSS simply because of the number of developers often involved and the inherent nature of ‘individual’ (as compared to corporate) contributions to development of many FOSS projects.

3) You ask me what I have against the patenting of algorithms. I think the first thing to say is that you start from (reading your whole text) point ‘a’ on the horizon where point ‘a’ is the assumption that patents are the divine right of ‘inventors’. From a historical study of patents, the truth is very different. It is a decision of society (going back to Prescott QC’s comment on the ratio behind patents) to grant an exclusive and monopolistic right to an inventor (against the principles of an open market and free competition without monopolies) in exchange for the perceived benefit of the furtherance of the arts/sciences as a result of the grant of the patent. The patent system traditionally developed in areas of human endeavour where it was considered that the negative effects of monopolies where outweighed by the advantages of fostering innovation in certain fields which were: a) not protected by other forms of intellectual property; and b) involving areas of human endeavour which involved a significant experimentation cost and trial and error in the physical sphere of unknown results, i.e. applied sciences. As has been cited in numerous reports, governmental studies and research documents, the knowledge based economies such as information technology industries are ill-suited (see my critique on software patents for more details) to the patent system and have already an existing means of protection for ‘endeavour’, being the copyright system, which although not perfect, is far more suited and more economically efficient then the patent system.

Going back to your specific point about algorithms, the answer to your question is an article in itself. However, in brief, it has long been felt that monopolising what are nothing but ‘intellectual processes’ or the application of mathematic principles (i.e. exact sciences, there is no (or insignificant) experimentation costs to the application of exact sciences as compared to the application of applied sciences) was too high a price to pay and did not further the progress of the arts and sciences. As you will see, this is why the EPC excludes mental processes, maths AND computer programs which is, in many ways, a subset of the above, in that the patenting of computer programs involves the patenting of something intangible which has no, in itself, physical manifestation or lengthy or costly experimentation with physical forces which might justify a monopoly grant. Whereas the majority of modern day patents are granted for a (not ‘the’) physical implementation of an idea(s), because computer programs are intangible and not physical, by granting a patent over software you are granting a patent of either maths or functionality (i.e. the ideas behind the program rather than the implementation of an idea). With traditional fields of patentable technology, because there is a patentable physical manifestation, the ideas being implemented ARE ACTUALLY NOT PATENTED, what is patented is instead the SINGULAR PHYSICAL IMPLEMTATION leaving others to freely study the ideas behind the implementation in the physical world and patent OTHER WAYS OF IMPLEMENTING THE SAME IDEAS. With software, given it lacks the physical manifestation (called by Prescott, the physical artefact OR process), what is actually patented is not a SINGULAR IMPLEMENTATION but THE IDEA(S) themselves, meaning that the ideas ARE NO LONGER FREE. This is against the very principles, for example, of the copyright regime, where as embodied in the Software Directive 1991, we are free to study the ideas behind a computer program, SINCE it is in society’s interest that we do so because of the fact that the IT industry has thrived on people being able to use the same ideas and come up with parallel ways (using different source code) to solve the SAME problem (read idea or functionality). Software patents prevent this. When you realise that software (because it is intangible) can be written in MANY DIFFERENT ways to solve the SAME problem, you realise the danger (and hindrance to innovation) that the patent system represents when it, in the case of software, forecloses (monopolises) the actual problem (read functionality or idea also). However, I am not the most eloquent speaker so let me leave you to ponder the following expressions of this principle, one from a German judge and one from a well known campaigner against software patents:



“why should it make any difference whether I run [the ideas] in my head, with pencil and paper or with the normal tool of today's civilisation, which is the universal computer……because the economic rationale behind not granting patents on thoughts applies also here: abstract ideas are, regardless of their applicability to technical problems, produced without experimentation cost, applicable to an infinite range of problems, and replicated at zero cost with no overhead to which patent license fees could be added. The division of the extra cost of patents by the marginal cost (and long-term ideal price) of information goods is a division by zero.” (Hartmut Pilch)

“any attempt to attain the protection of mental achievements by means of extending the limits of the technical invention -- and thereby fact giving up this concept -- leads onto a forbidden path. We must therefore insist that a pure rule of organisation and calculation, whose sole relation to the realm of technology consists in its usability for the normal operation of a known computer, does not deserve patent protection.” (German judge, see footnote 12 of my article in January 2006 for full reference)

Best regards

Cristian

www.lasporg.info

Gerontius said...

Cristian

You politically try to state that nobody is reading what you are saying carefully enough. However, from my perspective you are not reading what I am saying and are also not reading what Peter Prescott was saying - I personally find it highly amusing that you try to use CFPH to justify your opinion that the EPO are habitually granting patents that they should not. He warns of the dangers of granting patents wrongly and states, very strongly, that appropriate lines should be drawn. However, his line in the sand appears to me to fall squarely with the EPO's, even though his is drawn with a stick and the EPO are using a pebble. To stretch the metaphor further (!), Mr Prescott is clarly of the opinion that the pebble is something of a blunt instrument compared to his stick, but that is where his criticism of EPO practice ends.

I managed to track down your article and can find none of the answers I was looking for: what is a "software patent" or "software-assisted invention" (definition, please), and what is the appropriate purposive construction of "as such"? - I've reviewed some of the preparatory materials for the EPC and it looks to me that the framers weren't quite sure what they meant by it either, so it is disingenuous to imply that there is one interpretation that is correct (e.g. yours) and another which is incorrect (e.g. the EPO's).

You also do not appear, to me, to have picked up on the intricacies that resulted in current EPO practice and baldly state that they are being non-consitutional in their application of the law. Patent attorneys clearly have more to offer the debate than merely administrative details judging from the failure by so many people to understand this very specialised area of law, of which the exclusions are an even narrower sub-specialism. That is my job - to understand the interpretation of the law by the EPO and UKPO and to try to get my clients patents within those intepretations. I am not an economist or a software programmer or a lobbyist, so it is not my place to say whether the current scope of protection afforded to computer-implemented inventions is correct or not - and you will note that I have not done so. I have merely questioned your insistence that the EPO have got it wrong since (a) I have yet to see a precise definition of what you think is "right" and (b) the EPO are not, in my view, saying what you think they are saying.

If questioned, I would admit that I am largely supportive of the EPOs position, but that is largely because I see it as being a vast improvement over the situation in the US - any patent system is better than theirs! I also think that the case law of the EPO (when properly applied, to use the words of Peter Prescott) should not result in the nightmare scenerios you envisage, so am not sure what it is you are objecting to.

It is true that EPO examiners make mistakes (by not properly applying the case law) and grant a number of patents that they should not - the Amazon one-click divisional being a prime example, and I fully expect the opposition to be successful on that case. But the fact that such mistakes occur does not mean that the system is broken, it means that examiners must continue to be vigilant - again quoting Mr Prescott.

Anyway, since neither of us is apparently able to read or understand the comments of the other, I will be leaving this debate now and going off to have a nice relaxing weekend. Hopefully at least one person reading this will be able to understand my points.

Cristian said...

Ok, now I have worked out how to delete comments, I have reposted my original comment of late last night correcting some typos, clarifying a few comments and deleting one quite amusing unintended double negative :-)

You politically try to state that nobody is reading what you are saying carefully enough.

"There is nothing political.."

However, from my perspective you are not reading what I am saying and are also not reading what Peter Prescott was saying - I personally find it highly amusing that you try to use CFPH to justify your opinion that the EPO are habitually granting patents that they should not.

I don't need to - you only need to go and examine the patents the EPO has granted. As it's your profession, why don't you go and read some patents and see that the EPO has granted thousands of patents for computer programs or computer-implemented inventions which have foreclosed the software element. Once you have counted the number of patents for software, go back to Prescott's judgement and read para 25

“25. Article 52(3) indicates that a subject-matter is excluded ‘only to the extent’ that a patent relates to it ‘as such’. This is confusing. In the past it has led some people to think that you should be able to patent any new, non-obvious idea, so long as what is claimed as the invention does not consist only of excluded subject-matter. According to that reasoning you could patent an excluded item e.g. a computer program by the formal device of claiming some physical artefact (e.g. “A magnetic disk in which my program is stored”, or “A computer when operating under the instructions of my program”). And indeed if it were just a question of interpreting Article 52(3) as if it were an Act of Parliament, they might have been right. However, it is not an Act of Parliament, and they were not right.”

Please note, an excluded item..."a computer program". I don't think this needs interpretation, a computer program is an excluded item. Now go and read all the exclusions. You might just start to see a pattern in the madness of our forefathers... there is something that a NUMBER OF THE EXCLUSIONS have in common, they seek to prevent IDEAS, MENTAL THOUGHTS, EXACT SCINCES etc from being patented and hence avoid the creation of a knowledge tax. The basic constructs of mathematics, mental thoughts etc should not be patentable. Please now try and adopt a 'purposive approach' to the exclusions given this is an international convention. If you can't see that computer programs are meant to be excluded go back to step a. If you get confused with the words 'as such' and 'to the extent', go back to paragraph 25 of CFPH judgement and maybe also paragraph 103 (and the little man test) in respect of hybrid inventions. I think my explanation of how the words 'as such' and 'to the extent' in my article referenced above is completely consistent with the need to address hybrid inventions which involve a computer program. I think I clearly set my explanation out in my article. I am sorry that you cannot follow this explanation or that you are blind to the logic behind the Article 52 exclusions. Not everything should be patentable. There are certain fields of human endeavour which are rewarded by other forms of intellectual property protection.

Now having estalished that a) software patents have been granted by the EPO; and b) software is an excluded item, please explain how you can reason that the EPO is interpreting the EPC in the same way as Prescott QC does (or any other person adopting a purposive interpretation of the exclusions) when despite the fact that Prescott clearly considers computer programs to be excluded subject matter we are swimming in computer program patents! To give you just one snippet of how the interpretation of the EPO has mutated in 30 years to fit the needs of their 'customers' better, take the reasoning in the recent patent application of:

http://legal.european-patent-office.org/dg3/biblio/t030424eu1.htm

"Moreover, the Board would like to emphasise that a method implemented in a computer system represents a sequence of steps actually performed and achieving an effect, and not a sequence of computer-executable instructions (i.e. a computer program) which just have the potential of achieving such an effect when loaded into, and run on, a computer. Thus, the Board holds that the claim category of a computer-implemented method is distinguished from that of a computer program.”

I'll translate what the board is saying: computer program on its own =computer program, computer program run (now hey presto it's doing something) in a computer system (er..didn't know computer programs were meant to run in a computer system, that's magic..) = patentable. Er...seems pretty damn close to what Prescott was saying was the 'wrong' interpretation of the computer program exclusion in para 25 of his judgement. The net result of the board's view is that computer programs are foreclosed (patented) if not considered in the abstract but as part of a computer system. Now, go back and read the EPO's examination guidelines back in the 1970's and read the current guidelines in respect of the exclusions - once again there has been a mutation in a way which distorts the purpose behind the Article 52 exclusion on computer programs. You say that you are an expert on these exclusions. If this is the case, I really don't need to explain the linkages and relationships between the exclusions.


.

He warns of the dangers of granting patents wrongly and states, very strongly, that appropriate lines should be drawn. However, his line in the sand appears to me to fall squarely with the EPO's, even though his is drawn with a stick and the EPO are using a pebble. To stretch the metaphor further (!), Mr Prescott is clarly of the opinion that the pebble is something of a blunt instrument compared to his stick, but that is where his criticism of EPO practice ends.

You are entitled to your opinion (well, you are in an EU society which hasn't quite yet slumped as low as sanctioning the patenting of ideas/thoughts....perhaps one day you will have to pay a patent licence to express your opinion ;-) ) - I think Prescott makes it quite clear that he thinks the EPO adopts an overly broad interpretation of 'technical effects' with the result that software is found to have technical effects. See also my discussion above.

I managed to track down your article and can find none of the answers I was looking for: what is a "software patent" or "software-assisted invention" (definition, please), and what is the appropriate purposive construction of "as such"?

This is quite funny. Of course you would be looking for a definition of 'software invention', you are a patent attorney and perhaps after all those years of studying the 'mantra' (to borrow from you) of patent attorney textbooks, you might find it hard to believe that there is NO SUCH THING as a software 'invention'. If you read my article again you will see I quote a well known software executive and developer who summed the situation up very well when he said that the term 'software invention' was a term invented by lawyers (with no doubt some help from patent attorneys). For me the expression 'invention' in the context of what is a 'patentable invention' has to be defined by reference to the EPC and, as I explained earlier (as noted by Prescott), a PATENTABLE invention is defined negatively by what IT IS NOT and IT IS NOT SOFTWARE. Again, as far as software assisted inventions are concerned, the actual PATENTABLE part of the invention is no different then any other physical invention in the fields of technology which are patentable fields as per the EPC, it is just that in creating the physical effects which are patentable (because they satisfy all the criteria for patentability) a software program is involved but, in a purposive interpretation model, the software element would not form part of the patentable claims and the actual software would not be patentbale (although it would be protected by COPYRIGHT!). Now a perfect example of the kind of invention that fits this explanation is ABS, the braking system. As for 'as such' and 'to the extent' please read above - I spent about 500 words explaining what I saw as the purposive approach. Other people have managed to grasp what I was advocating.


- I've reviewed some of the preparatory materials for the EPC and it looks to me that the framers weren't quite sure what they meant by it either, so it is disingenuous to imply that there is one interpretation that is correct ( e.g. yours) and another which is incorrect (e.g. the EPO's).

I can point you in the right direction. Go back to CFPH and read his footnote references. I AM NOT SAYING MY INTERPRETATION IS CORRECT. However, as explained by Prescott, the EPC is an international convention which is meant to be interpreted in a purposive fashion. A bit like EU directives and Article 249 of the EC Treaty. Now, if I read the whole of Article 52, for me the framers did intend to exclude computer programs from being patentable. This is also the view of Prescott, and I have highlighted his wording above, it is for him 'an excluded item'. Now, the EPO is not adopting Article 52 in a purposive fashion and this is blatant by the fact, as noted above, we are swimming in software programs which have been patented and from the decisions of the Board of Appeals and the EPO (the above example is just one recent statement which clearly evidences the distortion of Article 52 by the EPO/BA). So, YES I DO THINK THE EPO/BA ARE SERIOUSLY OFF COURSE and WRONG. Prescott also used the word 'wrong' in paragraph 25 when talking about those who thought that 'as such', in relation to computer programs, was meant to mean that a computer program could be patented if claimed together with a physical artefact or process, including a computer. This is the EPO's interpretation of 'as such' as evidenced by their decisions and patents granted and 'as such' they are wrong. By the way, I do not consider individual examiners to be at fault here necessarily. The change in EPO/BA approach has been a gradual one and has, for me, been directed from the top.

You also do not appear, to me, to have picked up on the intricacies that resulted in current EPO practice and baldly state that they are being non-consitutional in their application of the law. Patent attorneys clearly have more to offer the debate than merely administrative details judging from the failure by so many people to understand this very specialised area of law, of which the exclusions are an even narrower sub-specialism. That is my job - to understand the interpretation of the law by the EPO and UKPO and to try to get my clients patents within those intepretations.

Yes, your job is to get your clients patents. Now you believe you have the legitimate right (without there being a presumption of conflict of interest) to get involved in a debate about what should and should not be patentable. I think you have answered your own question.


I am not an economist or a software programmer or a lobbyist, so it is not my place to say whether the current scope of protection afforded to computer-implemented inventions is correct or not - and you will note that I have not done so. I have merely questioned your insistence that the EPO have got it wrong since (a) I have yet to see a precise definition of what you think is "right" and (b) the EPO are not, in my view, saying what you think they are saying.

If questioned, I would admit that I am largely supportive of the EPOs position, but that is largely because I see it as being a vast improvement over the situation in the US - any patent system is better than theirs! I also think that the case law of the EPO (when properly applied, to use the words of Peter Prescott) should not result in the nightmare scenerios you envisage, so am not sure what it is you are objecting to.

It is true that EPO examiners make mistakes (by not properly applying the case law) and grant a number of patents that they should not - the Amazon one-click divisional being a prime example, and I fully expect the opposition to be successful on that case. But the fact that such mistakes occur does not mean that the system is broken, it means that examiners must continue to be vigilant - again quoting Mr Prescott.

Anyway, since neither of us is apparently able to read or understand the comments of the other, I will be leaving this debate now and going off to have a nice relaxing weekend. Hopefully at least one person reading this will be able to understand my points.

I understand your points, I just don't agree with the majority of them. I'm sorry that you can't see through the smokescreen created by the books you read to become a patent attorney. I am also sorry that you cannot see what is straight in front of you, a sea of software patents granted by the EPO despite the clear purpose behind the Article 52 exclusions. Go talk with some software developers, go try and understand the software industry (here, I mean the majority of the IT industry which is made up by SMEs, not IBM, SAP and Microsoft). As you are a fan of science fiction, I suggest you read some sci-fi books and go figure what it might be like if a patent attorney 100 years ago had been able to patent the plot of books, robbing you (or at least reducing the possibility through increasing the barriers to entry) of reading many more wonderful books which have taken similar plots and made them great (and better) stories (without infringing copyright)...now go back to software. Enjoy the journey and when you have seen the light...get back to me. May the force be with you.

Cristian www.lasporg.info

Anonymous said...

"Finally, I am getting sick and tired of the constant false accusations that European patent attorneys and the EPO are trying to make everything (and have a vested interest in making everything) patentable. Such accusations serve no good since they result in people mistrusting the cogent advice of the very people who understand the legal side of the patent debate."

Well, the legal side is one issue, the normative question another. Software developers want to keep their business free from patents. That's all. Patent instutions and patent attorney should not tell them that patents were beneficial for them, when market believes the opposite. Institutions and professionals do not need to interfere into industry discussions.

In the CII debate patent attorneys and institutions burned their credibility.

When you look at the EPO conferences you easily observe how the EPO community is expansive. Many of these also propose to extend patent law to business methods.

In the software patents debate we experienced the EPO and patent attorneys as biased and deceptive stakeholders. The EPO even lobbied parliament!?

EPC 52 was reinterpreted and the infamous TBA-verdict which shows the problem. Here the EPO TBA rendered EPC 52 meaningless by the creation of a term such as "further technical effects". CII-patent == Softwarepatents. The Patent institutions lied about that, created the impression CII was something else, that software developers misunderstood it, that CII was something like washing machines, or think of the deceptive wording of the CII directive -- but they were unable to catch up with the costs of maintaining the lie. In fact the false information and arogance by the patent community caused a lot of the hatered.

And we know from EPO documents that the EPO itself it thought that "further technical effect" was an interim diction that advances a deletion of the relevant EPC 52 provision by the Diplomatic Conference which failed.

What you propose was done by the UK seminars series on technicity. They invited professionals and patent attorneys and started to proceed using the testsuite approach the FFII advocated.


--- Bertram

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