For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 14 January 2007

Software patents: yes or no?


The IPKat is pleased to note that certain members of the anti-software patent lobby have been paying attention (for examples see comments on the posts here and here). He (or rather one of his amenuenses) has been pondering the issue of "software patents" and their effect for some time, without coming to any definite conclusion.

Right: The IPKat tries his paw at a bit of software coding.

The anti-software patent lobby, exemplified by the (rather pretentiously titled) Foundation for a Free Information Infrastructure, have resisted attempts to harmonise patent law throughout Europe by opposing, and ultimately killing, the Computer Implemented Inventions (CII) Directive. The general view, which caused the death of the CII, is that patents should not be granted for computer software. Extensive lobbying of MEPs resulted in a very confused situation, and the CII was abandoned largely because it turned into a bit of a farce with lots of unworkable and contradictory amendments. This was, in the IPKat's view, largely because nobody really understood what they were trying to do. Practically the only MEP who had any degree of understanding on the issue was Sharon Bowles, the only MEP who is also a qualified patent attorney (see her comments on the issue here).

The problem was nobody (even those with some knowledge of IP) could agree on exactly what needed to be changed, let alone how it could be done. While the law could be changed to exclude computer software (more than the current 'as such' exception), how could this possibly be achieved without having effects worse than the current law? Would it be possible to exclude the practice of claiming a computer program (as became possible after this EPO decision)? If so, would method claims that cover computer programs in part be allowed? Should it be a contributory infringement to supply a computer program that was essential to putting an invention into effect (as was found in Menashe v William Hill)?

It is possible that everyone was barking up the wrong tree, and that it is not in fact possible to define the boundaries of what should and should not be patentable in a way that would please everyone (or at least most people, it being impossible to please everybody). Perhaps Section 1(2) is not the place to be looking for a solution.

Section 60 of the UK Patents Act 1977 sets out what does and doesn't constitute an infringement of a patent. In subsection (5) there is quite an extensive list of exceptions to the standard ways of infringing a patent (eg making, using, disposing of). These are meant to be equitable ways of limiting the power of a patent holder against those who should not be pursued for infringement. These include farmers, private non-commercial users, medical researchers and others.

Perhaps this is the place to look for a solution. Why should the development, use, distribution etc. of computer software itself be classed as infringing? If it wasn't an infringement, wouldn't this solve the problems of those who only want to make new software or modify existing software and don't want to risk infringement? Wouldn't making an exception of this kind help the development of new and innovative software solutions?

Here is a proposal then that might just achieve this. In Section 60(5), insert this subclause:

(j) it consists of the making, use, disposal, offering, keeping or importation of computer software.
This little change would exempt software itself from patent infringement. It would not prevent computer implemented inventions from being patented, nor would it prevent companies from suing others for infringement based on real embodiments requiring patentable software solutions, for example the sale of music players or telephones incorporating patented software-implemented inventions. It would, however, prevent software developers from being sued under a patent for merely developing and distributing software they have developed themselves.

Of course, big companies like Microsoft and IBM would doubtless complain that their rights would be severely restricted by such exceptions. However, a large part of the protection afforded to software such as Microsoft's operating systems is due to the combination of copyright protection together with the almost impossible task of reverse engineering publically available object code into source code that can be made sense of. So, copyright protection (which, to remind readers, lasts for 70 years after the last author's death - a very very long time) together with the law of confidential information, seems quite adequate to protect the investment needed to develop software. After all, a return on investment is what the IP game is all about, is it not?

The IPKat would be interested to see if anyone has any comments about this.

33 comments:

plh said...

"This was, in the IPKat's view, largely because nobody really understood what they were trying to do. Practically the only MEP who had any degree of understanding on the issue was Sharon Bowles, the only MEP who is also a qualified patent attorney (see her comments on the issue here)."

Well I was pleasantly surprised by how many MEPs did at least seem to understand the economic and public interest aspects of the proposed Directive - even if they didn't understand the legal details. And since they had to contend not just with ordinary legal technicalities but with (to paraphrase the EESC's 2002 Opinion) the intentionally fallacious reasoning and disinformation even of the text of the proposal itself, I was also impressed by the way so many MEPs seemed to grasp what that disgraceful proposal was, by legal means, really intended to achieve.

I suspect that if it hadn't been for the work of the FFII, the EESC, Maria Rossi's analysis, the Polish government's November 2004 cabinet meeting etc. in exposing that (to me) /astonishing/ deception, the majority of MEPs would've taken the Directive and its claimed intentions more or less at face value and voted it through. So though I have indeed read those comments made by Sharon Bowles (and others she made at the time), regrettably, I have to say I've little doubt you're right about her understanding the issue. Even more regrettably, I have no doubt at all that the UKPO fully understood the issue when it issued its 'explanatory' document, "The Computer Implemented Inventions Directive explained", in November 2004.

Cheers,
Paul.

Anonymous said...

The difficulty with looking to infringement provisions is that innocent people must rely on a defence, rather than tackling the issue at the 'front end' so to speak in terms of what can/cannot be patented.

From the little I know the issue seems resistant to codification (rather like bad faith in trade marks) and therefore a purposive approach is inevitable

Axel H Horns said...

"It is possible that everyone was barking up the wrong tree, and that it is not in fact possible to define the boundaries of what should and should not be patentable in a way that would please everyone (or at least most people, it being impossible to please everybody)."



David,

I can only agree with your proposal not to be glued at a discussion of the material criteria of patentability on the pre-grant side but also to consider the introduction of adequate exemptions into patent law on the post-grant side.

However, there appear to be certain difficulties to convince the patent critics as well as parts of the industry.

In 2000 I was co-author of a paper commissioned by the German Ministry of Economic Affairs wherein a suggestion was made to introduce an additional exemption clause for software in source code form (sorry, in German only):

http://www.ipjur.com/data/LuGeHo.pdf

Statement of FFII in re Lutterbeck, Horns, Gehring (in German only, sorry):

http://swpat.ffii.org/papiere/bmwi-luhoge00/index.de.html

Later on I have attempted to discuss options for introducing post-grant exemptions with FFII but they were not really prepared to go further into this:

"This gives me an opportunity to reiterate my observation that most part of the anti-patent crowd appears to be glued to a hostile discussion of the pre-grant aspects of the patent law only. Obviously they like to ignore the entire set of post-grant instruments for aligning IP with reality. Take, for example, not only the system of exemptions embodied within (continental) Copyright Law but, in the realm of patents, [...]"

http://www.ipjur.com/2006/04/dispute-on-patents-is-going-on.php3

"Let us have a brief look at the system of continental Copyright Law. Nobody would seriously discuss questions like "Should an opera as such be copyrigtable?" or "Should architect's blueprints as such be subject to Copyright?". All such sorts of artistic work are extensively covered by Copyright law. This fact does not mean that putting all kind of artistic works under the regime of Copyright Law does not cause problems, e.g. for broadcasters, researchers, or collectors of art. But the political solution which was reached up to now is a dedicated and fine-tuned system of exemptions, not of complicated or restrictive material rules of copyrightable subject-matter.

Where is the link to the problems in the field of patents?

[...]"

http://www.ipjur.com/2005/06/on-borderline.php3

"If there should be specific problems resulting from the encounter of the software world with the patent system, these problems could be solved by adjusting exemptions and compulsory licenses, not by adjusting material criteria of patentability."

http://www.lessig.org/blog/archives/002900.shtml

You can see at the related discussion(s) on those pages how difficult to promote such proposals are.

Axel H Horns

Anonymous said...

IPKat,

Yes, Sharon Bowles is a Patent Lawyer, No she doesn't understand the issues of software patents, quite possibly deliberately - after all several of her clients pay her to make sure that their software is patented. Such as using directed graph solving, which is pure mathematics to design circuits boards - something that is entirely within software, and something that I have done both using software and manually - with techniques that work both ways.

Ms Bowles in her statement claims that Compression software (again pure software, using mathematics) is already patentable, which is only true if you take her meaning of "software as such" to be "software on a floppy disk" or something equally disingenius. You can see that she supported the common position, saying that it allowed any software that was "technical" and therefore wasn't "straight forward encoding", to be patented. In her correspondance she claims that software that is 'hard' or 'complex' should be patentable.. surely the same would apply to novels, surgical techniques, pure maths, etc - all of those are pretty damned hard, she also has no knowledge of software engineering and it shows in her support of software patents.

I also think your suggested clause would be quite good, but only if we, rightly, limit patentability at the pre-grant stage - Axel Horn is quite happy to allow challenging of patents, after all, non-excluded areas can be challenged, and so software patents would still be valid per se, and you would have to challenge every one, individually - great for patent lawyers, and companys that can afford to patent hundreds or thousands of trivial ideas every year, very bad for the public, software developers and the economy as a whole - just look at how much is spent on software patent litigation in the US, in particular the Blackberry case, where a poor patent was left unchallenged because of the cost of doing so was even more than the millions of dollars in the settlement.

I think the biggest problem here is that patent lawyers and patent offices don't want to admit that they don't understand software, and have made a complete mess in their attempts to broaden what can be patented, software has never been made patentable by legislation whether in the UK, EU or US, in every occasion it has been judges, patent offices and patent lawyers pushing the boundaries to suit their agenda, so obviously it requires clearer legislation that a) doesn't require you to be a judge or lawyer to clearly see what is excluded, and b) doesn't result in everybody having their own definition, c) excludes software and d) doesn't contain vague or loose wording.

regards,

Aaron Trevena, BSc Hons
Software Engineer.

Anonymous said...

While the IPKat's suggsted amendment to Section 60 might have its merits, I am sure that the patent lawyers would run up rather large bills arguing what is meant by "computer software". With the omnipresent microchip affecting so many aspects of technology, my opinion is that there is no possible wording which would differentiate "computer programs" in their classical appearance from "programs for computers" in the technological sense.

Clearly, those working in the software industry have a desire to ensure that their creative work is not stymied by overly braod patent protection but this has to be balanced against the interests of industrial organisations wishing to protect their technical developments from being ripped off by competitors who decide not to spend money on R&D and hence gain an unfair competitive advantage. If that technical advance lies in programmed microchips improving the product, prtotection should be available.

Is there a real difference between

1) a washing machine arranged to measure a rate of decrease in water pressure after initial filling to determine a washing load and hence control subsequent water filling operations

and

2) a computer program adapted to perform a subroutine to determine a rate of fall of an input variable and to use this determined value to control subsequent output variables?

Gerontius said...

I've been thinking about the idea the IPKat raises for some time ever since I heard a Keith Beresford tirade against the UKPO's practice of not granting patents if there is a claim to a computer program (on a carrier) for carrying out the otherwise patentable process. I didn't agree with a lot of what he said, but I think he had an important point to make here.

Anonymous poster of Monday, January 15, 2007 10:08:23 AM started to make this point, but I'll try to make it clearer. Here's an example.

You invent a new process for mixing concrete. The concrete is far better than previous concrete mixes and the resulting buildings are stronger and safer. Anyone who can accept patents should exist at all should be happy that this process can be patented.

The problem comes in that such a process could probably be performed quite easily under computer control. So, let's say someone starts selling a computer program that would cause an existing computer-controlled concrete mixer to mix concrete in the patented way. If the person who invented the process couldn't get a patent for a computer-implemented way of performing it, then they couldn't sue the person selling that computer program directly, but would have to rely on contributory infringement or sue their potential customers instead. For contributory infringement, there's the risk that a computer program carrier is a staple product.

If it is not possible for a computer program to infringe, then this might prevent any action at all being brought against the person who sold the software that could be used to carry out the patented process. Not a good situation for the owner of the patent on the underlying process to be in.

Of course, someone selling a computer program that enables a concrete mixer to create many different types of mixtures, this computer program being flexible enough that the end user can implement the claimed process if they choose, shouldn't be afraid of infringement (in the same way as sellers of video recorders shouldn't be afraid of being sued for merely enabling, rather than actively supporting, copyright infringement). Perhaps some clarification in the law could be inserted there.

So I still think that decisions that extoll substance over form are onto something. Claim that, in form, relate to a program for a computer should be fine, so long as the substance of the invention is a process that is patentable by itself.

Oh, and Aaron Trevena, BSc Hons, please stop trying to persuade everyone that patent attorneys know nothing about software. We all have strong technical/scientific backgrounds and can count many software engineers amidst our number. Also, we get paid to "TRY" to get our clients patents. Whether we succeed or not is largely irrelevant. Most (US based) clients I work for say "try anyway" even when I tell them that they won't get a European patent.

Gerontius MPhys
(Master of Physics, specialising in mathematical physics)

Anonymous said...

Gerontius,

You provide a much better example than the anonymous and unidentified poster, but like him see Patents as the only applicable protection, given that the latter scenario of a general purpose cement mixer capable of mixing any combination provided in a recipe, the innovation is clearly not in the software itself, but in the data detailing not instructions for the computer, but the recipe of how the cement is mixed, this is pretty much Data, and because it applies to the machinery and ingrediants rather than the computer (which runs the flexible mixing software), you want to protect said data. Which you could do amply using copyright, much as you can license other information for use, this could be licensed and so you get the benefit of protection, and further the art at the same time.

In the anonymous posters example, it is pretty clear that the washing machine software itself is not innovative, and neither is the washing machine itself, you could quite adequately protect the software using copyright, and if you fear reverse engineering, treat it as a business secret, and prevent reserve engineering by encasing the chip in epoxy or other solution that makes it hard or impossible to remove the chip itself without damaging the circuitry and chip. Given neither idea is novel in itself, it doesn't merit a 20 year monopoly, particularly as it's hardly a ground breaking example.

What you choose to ignore is that the benefit to society is an essential part of the bargain, and if the benefits are outweighed by the cost of allowing software patents, as has been shown to be the case, then it's safer to rely on market forces to push innovation than 19th century style monopolies - after all necessity, not patent protection is the mother of invention. Patents in software and IT have actually increased, as R&D spending has decreased, so obviously it doesn't work in every area.

I note that neither of you actually write software for a living, so my point still stands, people who create software don't want it patented and don't want to patent it, I've yet to so a patent lawyer who has more than some academic knowledge of actually writing software, I'd be interested in an example of such a beast.

David said...

Many thanks to all of the above for the interesting comments. It looks like I now need to clear up a few misconceptions about what the suggestion was intended to do.

1. I will say no more about the CII, since too much has been said already. I would rather have a sensible discussion about real and practical changes to the law that would achieve real results.

2. Making software itself exempt from patent infringement is not a defence for innocent people. It is a specific exclusion from infringement. Software developers would not be required to raise this as a defence in court when being sued for infringement, as there would be no infringement to argue for in the first place. There are already many exemptions from infringement, most of which work pretty well (don’t please get started on the Bolar exemption though), and are not even noticed by the vast majority of people who would otherwise be infringing one or more patents.

3. The problems of trying to address the issue in the patent granting system are well-known, which is precisely why I am making this suggestion. There are simply no workable solutions that would allow protection for inventions that may be implemented using computers while also preventing this from covering software itself. Adding an exemption is a much more precisely defined way of achieving the goal, as was very well explained by Axel above.

4. As for whether the exemption would be difficult to interpret, how much more precise could it be exactly? All modes of infringement are excluded. Computer software is well defined, as far as I can see (definition: a set of instructions for a computer; the exact form is unimportant). The word “consists” is a very well defined legal term, used in the other exemptions.

5. There is a very real difference between a washing machine configured to wash clothes in a particular way, and a computer program for a washing machine that, when installed, will allow the machine to wash the clothes in that way. Under my proposal, the first could be infringing while the second could not. Under the current law, both could be.

6. The concrete mixing example is a good one, but any industrial process could be used as an equally good example too (e.g. pharmaceutical processing, injection moulding, cake making etc. etc.). What could happen at the moment is that a new and innovative process for making concrete may be patented. This might cover the product itself, if it is sufficiently distinguishable from existing concrete, but would certainly cover the process. Anyone using the process to make concrete would be infringing. Anyone supplying the software may also be infringing, at least to the extent of contributory infringement. If we exempt software from being infringing, supplying software alone would not infringe the patent, even if this were supplied with the intention of implement the patented process. However, the patent holder could still sue the person using the process, i.e. making concrete, or selling concrete made using the process. What he couldn’t do is sue based on the software alone.

7. One should not confuse data with a process. This is like confusing the music held on a cd with the particular format the music on the cd is coded in. The former can only be the subject of copyright, while the latter may be patented. Processes and apparatuses can be the subject of patent protection, but data itself cannot.

8. I do not write software for a living; I deal with patent applications and patent law for a living. I understand software, but could not write a routine in C without much consultation of textbooks. How does this make me unqualified to comment on software patents? Reversing the argument, I could say much the same about anyone who has not studied intellectual property law being unqualified to comment on it, but that would be unfair.

9. I can’t resist it: “people who create software don't want it patented and don't want to patent it”. Hello?? Are we living on a different planet? What about all those nice people at Google and Microsoft? Are you saying that Sergey Brin and Bill Gates do not want to patent software, or that they do not create software?

Gerontius said...

Anonymous 11:26:08

Of course I don't write software for a living. I make my living as a patent attorney and have no need to earn two livings or the insomnia that would enable me to do so. Nevertheless, my firm employs at least two attorneys who worked as software developers before joining the patent profession.

You, I'm guessing, don't write patents for a living, and IPKat's point that few people outside the field understand IP is wonderfully exemplified by your comment if you really think a cement mixing process is protectable by copyright to the extent that you could prevent others from selling software that would carry out such a process, and by completely failing to see the point that the washing machine example would have been innovative at one time and therefore still would have been perfectly worthy of patent protection. I have to admit that, when you think it through, the washing machine example is far better than mine because it is something which has to been computer controlled rather than my example, which could be achieved by a guy with a shovel and a couple of piles of sand. The washing machine idea is also certainly not protectable by copyright to the extent that would be necessary to prevent a competitor producing a knock-off.

Oh and don't try to bring in opinions about the danger of "software patents" and R&D spending in IT when we're talking about examples of R&D in cement making and washing machine manufacture. You can't have it both ways: either "software patent" means something that ONLY involves standard computers and software or it means anything that is under the control of a computer. You can't use it any way you want depending upon the particular perceived evil you're trying to combat from day to day.

And if software writers don't want patents, why are there software patents? Don't generalise based on your personal opinions. I spoke to one programmer within a company who was concerned about patenting his idea because it was evil (so he'd been told), but couldn't see any other way to prevent a rival company from ripping off this new idea in the same way they had with previous ideas. When I pointed out to him that you didn't have to sue every individual programmer for £50 million, but could just use it as leverage against the specific enemy, he quite warmed up to the idea.

Anonymous said...

Gerontius,

How is your recipe for concrete any different than a sewing pattern for a tougher cloth like denim - sewing/weaving patterns have been on paper and even punched card for over a century, and have always been protected by copyright and licensing, similar protection is equally applicable to software without any need for patents.

The thing is that patenting an existing piece of equipment when combined with new software as an invention precludes any other inventor from solving the problem independantly, using a different method in the software - unlike physical inventions - all software parts of patents describe the result or effect of the software rather than the implementation, all software patents describe "software that does this", as opposed to actual source code, preventing any alternative way of solving the same problem in software. Even if or where an algorithm is provided you still don't have an implementation, and an algorithm can be interpreted and implemented in source code in so many ways that it can be impossible to provide a narrow definition of a claim, it's as if Mr Dyson patented "using a cyclone to vacuum clean" and failed to provide a blueprint - if you can build a better cyclonic vacuum cleaner than Mr Dyson and it is unique then it is outside the scope of the claims then you deserve to be successful, otherwise his invention (or rather his collection of hundreds of individual widgets) is protected.

I did my degree in Computer Systems & Networks btw so I've actually designed, studied and built combinations of hardware and software - and seen that actually given the same problem, same hardware and even same compiler and language 20 different inventors can come up with 20 different solutions independantly - despite the same notes, and guidence from the same lecturer. It would be entirely possible to patent one solution and prevent all the others with a well worded claim - hence one of the biggest problems in the Patenting of software.

I don't object to people patenting the combination of software and hardware, where the hardware is novel, and I don't think there are any in FFII or who support it who would either. I think that, where there is a clear inventive step, that required a good deal of research in a new combination of hardware and software there could be a case for protecting it by claiming contributory infringement, but that would be very much a compromise to solve a difficult problem, and something of last resort where copyright and other protection has shown to have failed than that there was clear intention to infringe, I think the FFII have said similar.

I don't think those of us who want to prevent the patenting of software are being unreasonable, after all - it's our livings at stake, our ability to invent, and even to protect our own ideas that are in danger (see the case of the JMRI authors to see how patents prevent protection of their work, research and livelihood), and copyright has provided perfectly good protection for decades before Patent Lawyers and Patent Offices changed to rules to suit their own agendas. Had the EPO and USPTO changed the rules a decade earlier we would not have much of the software we see today - from Linux and Apache, to Windows, Mac OS X and MP3 Players, to Excel or Word, we'd be stuck in a 1985 groundhog day.

Aaron Trevena, BSc Hons

Anonymous said...

When I complain of Patent Lawyers and Patent Offices broadening the fields of patentability, I don't intend to tar you all with the same brush - obviously there are honest tax lawyers and patent lawyers and clerks who aren't looking for loopholes or deliberately misusing the word of the law to avoid the spirit of it, but when you look at where the changes have come from - it has been Patent Offices (who after all, make a lot of money saying yes to patents rather than no) and Patent Lawyers who have pushed at the boundaries (who would hire a lawyer who didn't try as hard as possible to get the result you want) and even directly lobbied or voted such as Sharon Bowles MEP and others in the European Parliament directly, or those who acted in secret behind the clock of the whispering into the ears of the EU Council ministers to suit the requirements of their own or their clients business, not to mention the astroturfing 'grassroots' organisations, or the blogging muckspreaders like Axel Horns.

There a few bad apples, but unfortunately they are not held to account and are able succede in furthering their goals.

Aaron Trevena, BSc Hons

Anonymous said...

Aaron wrote: "I don't object to people patenting the combination of software and hardware, where the hardware is novel."

That is one of the points of my washing machine example - the hardware is not novel, it is the programming which gives the technical benefit of load dependent water consumption.

Gerontius said...

Back on topic...

David

I agree that your proposal would not prevent the patent owner from suing the end user of a piece of software but, as patent attorneys, we must both know that you never want to be in a position where the only person you can pressure is your customer? Yeah, maybe you will win one battle by forcing that customer to buy from you or at least pay a license fee, but they'll take all their other business elsewhere. Bad situation to be in for any patentable product, not just software. This is one excellent example of how market forces limit the strength of patents that is forgotten by most anti-patent campaigners.

Turning back to the concrete idea, let's say someone was selling concrete mix that was in just the right proportions with instructions on the side of the bag to make the patented concrete. You could sue them without directly involving the end customer. Why should the patentee be prevented from suing someone who is supplying a bag of sand, a bag of cement and a program that takes these staple products and mixes them together automatically in the correct (patented) ratios?

David said...

Gerontius,

I agree that it would be not good to be in the position where the only person you can sue is your (potential) customer. However, this would only be the case if your product is software itself. If your competitor is copying your software you can sue him for that, rather than going for the customer. If your product was washing machines, concrete or concrete mixers, you would still be able to sue your competitors for patent infringement and would have no need to sue the customer. I cannot think of a hypothetical situation where preventing software itself from being an infringement would be inherently bad, other than if you want patent protection for the software itself. Maybe you or others could think of one and persuade us all that the idea is a bad one.

Anonymous said...

quick one for david :
9. I can’t resist it: “people who create software don't want it patented and don't want to patent it”. Hello?? Are we living on a different planet? What about all those nice people at Google and Microsoft? Are you saying that Sergey Brin and Bill Gates do not want to patent software, or that they do not create software?

That's funny - both Google and Microsoft gained their market position without usage of patents, the former sought patents to allow a smoother IPO, given that lawyers and investors like a 'tangible asset' they can use in court to make money should the business itself fail, the latter has sought patents as protection against infringement of other patents, the old M.A.D. tactic whereby all large software companies hold so many patents that they all infringe on another, reminding me of the the definition of allies being "two theives who's hands are so deep into each others pockets they can't individually rob a third".

Aaron Trevena

Gerontius said...

David

Perhaps we're talking at cross-purposes. Let me explain the hypothetical situation as I see it in full, and how I see your proposal affecting that hypothetical :) Perhaps then you can tell me why you don't see it as causing a problem.

X is a seller of concrete mix. They sell direct to builders. They come up with a new and patentable concrete mix and file a patent application. The resulting granted patent has claims to a specific mixture of sand and cement and a process for making concrete. They also have a claim to a computer program which, when executed by a computer, causes the computer to operate a concrete mixing device to carry out the process. Said computer-operated concrete mixing devices being known, per se. (Current practice of the UKPO is probably to reject such a program claim, by the way)

The product X sells to customers is a premixed bag of sand and cement, in the appropriate proportions, together with a set of instructions to carry out the mixing. Their competitor cannot sell such a mixture or supply the staple products together with the instructions to use them without infringing the patent and risking being sued.

However, what if the competitor said to the customer, I'll license you a computer program that will automatically mix sand and cement together to create this new concrete so long as you buy the sand and cement from me, too, rather than from X? If the customer takes the competitor up on this offer, I don't see what action X could bring against the competitor under your proposal.

The competitor are supplying staple products - can't sue for that. The competitor is selling a computer program. Can't sue for that. The computer program may have instructions for combining sand and cement in certain ratios, but that's not copyright infringement of the instructions that X have written on the side of their bags of premixed cement unless the competitor was silly enough to directly copy those as well. So can't sue under copyright.

X has lost their deal to supply the customer with their patented product and the only person they can sue is their customer.

If I've missed something obvious, please do let me know.

Something else occured to me. Electronic devices are become more and more customisable after sale, with users able to download new operating software for their phones, iPods, even their TVs (something that was virtually inconceivable in the 70s when the EPC was being written). Someone patents a new TV which works better due to the software control of a particular well-known component. Their competitors with TVs that are upgradeable after sale don't need to sell new TVs (and risk infringing the patent) they can just have a software upgrade transmitted with the TV signal. The software upgrade would not necessarily infringe copyright since, as has been pointed out, the same beneficial effects might be achievable in 20 different ways at the software level. Nevertheless, the upgraded TV is now an infringing article and the only person the patentee can sue is the viewer. Now THAT'S not going to happen! Again, please let me know if I'm missing something in your proposed amendment, because I see these as untenable consequences.

Anonymous said...

8. I do not write software for a living; I deal with patent applications and patent law for a living. I understand software, but could not write a routine in C without much consultation of textbooks. How does this make me unqualified to comment on software patents? Reversing the argument, I could say much the same about anyone who has not studied intellectual property law being unqualified to comment on it, but that would be unfair.

Funnily enough, lawyers don't have to consult software engineers when using software, but would expect to have influence on how software relevent to them works, the reverse of this is quite fair - software engineers should be able influence any legislation that affects how they do their job. Unfortunately it feels, after the CII debacle and the EU Parliment and UKPO 'consultations', that beyond signing a few petitions, writing to MPs and commenting on blogs we're shut out, so I ask you to forgive me if my frustration with this "closed shop" is showing in my words.

Aaron Trevena

Anonymous said...

"If I've missed something obvious, please do let me know."

I think you've missed the possibility of protecting a trade secret instead and focussed too much on using Patents to solve *all* intellectual property issues, when it is too blunt an instrument.

Coca-Cola keeps it's recipe for mixing a set of ingrediants secret, in fact that's something common to much of the food industry, chef's keep their best recipes secret, as do wine producers and brewers, there is no reason you can't do the same for concrete.

When selling your concrete to somebody you provide them with a contract not to disclose the contents and/or return any not used. If they aren't going to be your customer any more, what harm is there in suing them, particularly if your product is so innovative, you're bound to get more ;)

You didn't answer my challenge of how recipes for concrete or water ratios for washing clothes is any different to patterns for sewing machines, or punched card for a loom - how exactly would this differ from the Jacquard Loom, as far as I can tell you couldn't patent a pattern on a punched card or on paper, but instead used copyright.

You also don't solve the problem of protecting the inventions of those who don't have the money or time to patent first, that's the major problem with patenting, it 'protects' one inventor at the cost to all others, unlike copyright which protects all individually, so somebody will always be a loser however you draw the line with patents, so if somebody loses a bit of money because they couldn't protect their idea with a patent because it was in software, they can join the queue of other people who couldn't protect their idea because somebody else had a broad patent, or patented before they did, or they didn't believe their idea was worth patenting but now can't use it because somebody else convinced a patent clerk that it was.

You have to draw a line somewhere, and novelty being outside of excluded areas is almost certainly the best place.

As I said before, the problem with exceptions is that you would almost certainly have to still go to court to enforce them, as is the current case, given that software is already excluded in the EPC it would be reasonable to exclude it in an exception as well - that way the meaning is clear - being an engineer I like the idea of belt and braces ;)

Aaron Trevena

Anonymous said...

"I think the problem is that Patent Lawyers don't understand software anywhere near as well as software engineers do Law."

"they can join the queue of other people who couldn't protect their idea because somebody else had a broad patent"

"they didn't believe their idea was worth patenting but now can't use it because somebody else convinced a patent clerk that it was"

Nuff said.

Gerontius said...

Aaron
I'm ignoring your queries as they are largely based on opinionated and half-misguided rants well outside the scope of the original post that I can't be bothered with now. I'd rather spend my time trying to understand or maybe help refine David's proposal.

As I understand it, the topic of the post is whether changing the infringement rules will effectively exclude computer programs "as such" without affecting other industries in the way that the attempts to alter pre-grant rules would, not whether other forms of IP are more suitable to software. Copyright has a role in this but, if you actually "listened" you'd see that people have already explained why it is not enough on its own.

Thank you for listening.

David said...

To try to address Gerontius' comments above:

I think the situation where a piece of hardware is modified post-sale with a piece of software that improves the hardware in some kind of 'technical' way (let's not go into trying to define that right now) is the one area where my suggestion would reduce the ability of a patent proprietor to go for an infringer. However, that is precisely the kind of area where patents should not perhaps go (this is now a matter of opinion), and the protection afforded by confidentiality and copyright are more suited. After all, the producer of the television would have all the details about how to write the software to work well with it, which others would need to figure out by reverse engineering. And anyway, wouldn't it actually benefit the manufacturer if they allowed others to fiddle with the software to improve the hardware's functionality? I'm thinking of Lego Mindstorms in particular, and perhaps the original development of the PC. Would the PC have taken off in the way it did if IBM had a patent on the BIOS of their original PC, rather than just relying on copyright?

Anonymous said...

How does IPKat think about this posting?

http://preconcept.blogspot.com/2007/01/software-patents-debate-continues.html

David said...

The IPKat thinks that the post above is copyright infringement, and will deal with it accordingly.

Jonas Maebe said...

With regard to all the discussions about concrete mixing, sewing machines and other traditional (and less traditional) processes involving software: keep in mind that even in such industries software-related patents are not always very welcome. Have e.g. a look at the UK machine tools industry.

I also think the argument about Google and Microsoft applying for patents with the conclusion that consequently of course software-creating people are obviously interested in software patents is a bit misguided: if software patents are allowed, you pretty much need a patent portfolio because otherwise you have a disadvantage relative to you competitors, e.g. you can't engage in patent cross-licensing deals to avoid litigation or licensing costs.

Point in case, colleague of mine had an internship at Microsoft for three months and afterwards they filed for a patent on the work he did there. He's not particularly in favour of software patents, but he is listed as the inventor and the patent is applied for. Why? Because it's Microsoft's policy to patent pretty much everything which they do for strategy reasons.

I'm therefore of the opinion that this practice is completely separate from whether or not the engineers (or even management) are in favour of the concept of software patents and whether they genuinely think these are instrumental to promoting innovation (although with all their current investments in software patents, providing them with leverage over those companies who don't have them, it may be hard for management to answer this from an innovation/production point of view rather than from a business/strategic point of view).

David said...

All perfectly valid points, Jonas. However, this is going off-topic and does not answer the question I originally posed, which is whether my suggestion of changing the law would do the trick. As far as I can see, nothing in the above comments indicates to me that it wouldn't work.

Jonas Maebe said...

My thought was that your idea would not help the UK machine tools industry in any way. These people are not selling software, they're selling machines. And those software patents obviously relate to controlling/operating those machines.

Another example (though from an individual company and not from several ones like the above): a German SME working on electronic parts for the automotive industry. Although 80% of their work is software, the 20% other stuff (which is intricately linked with the software) would mean all of their work would still be covered by your proposal as far as I see it.

So while your proposal may indeed address most concerns of the desktop software world (and thereby a lot of the vocal open source/free software camp), I'm not really sure about the embedded software world. And as you probably know, that market is a whole lot bigger. Bessen&Hunt even found that most software patents are indeed obtained by non-software companies. They did not find that these patents stimulated R&D in those sectors though.

Also on a related note, the argument someone else made that next we might get a lot of discussions about "what exactly constitutes computer software" is not that far fetched. At the Diplomatic Conference of 1973 on the EPC there were also differing viewpoints about whether they should use "computers" or "data processing machines" in the English version of the EPC, and the potential consequences of this choice.

Unfortunately, we only have some quotes online in German (see e.g. quotes 19-22). One interesting quote from the British delegation on this point (my own translation with the help of Google translate and the similarities between German and Dutch, my mother tongue):

"The British delegation submits that in its opinion in English the expression "computers" should be maintained, even if linguistically it can mean more than a bare computer. The interpretation of such terms should be reserved to the future practice of the organs of the European patent office."

We all know where this sort of positions leads to by now :)

The other point (about Google/Microsoft and their patenting behaviour) was indeed not directly related to your original post.

Jonas Maebe said...

(the post by David I was replying to has disappeared, but maybe my clarifications are useful anyway)

I was indeed thinking of actually operating the machine tools. What I was trying to say is that the same software patents which would normally apply to a stand-alone computer executing some program, but which would be excluded from doing that by your enforcement exception, would still apply to machine tools, automotive components, etc.

In principle, this is a compromise the FFII was willing to make during the software patents directive process, and which is why we supported the 21 compromise amendments by Buzek/Rocard/Duff (they simply didn't say whether or not such patents should be granted -- and yes, I realise that was about granting and not enforcement).

The reason we are nevertheless not very happy with software patents even if they do not apply in the cases mentioned in your proposed exception, is that if without your exception they would in fact apply to "software running on a computer", then their contribution can only lie within the sphere of mathematics/mental acts/displaying information/rules of organisation. In other words, we believe the nature of the contribution of such patents can only lie in EPC-excluded subject matter.

According to a lot of economic research such patents do not help innovation nor the economy at large, regardless of whether they apply to desktop software or thingamajick operating/making (see B&H). There are also quite a few SMEs from various industries which support the FFII and who would prefer it to be made clear that such patents do not apply to them (which does not necessarily mean that they want all patents to be banned from their industry!)

As you (David) indicated, one obviously can't start making exceptions for this and that industry. So to me not granting them in the first place seems to be the only solution in that case.

(for the record: unless stated otherwise, all opinions expressed here are my own, although to the best of my knowledge they correspond to the FFII's official standpoints)

David said...

Given the comments above, and in particular the insightful ones by Jonas and Gerontius from either side of the spectrum, I now think that my suggestion is not "fit for purpose" (as John Reid might say). It neither does what the FFII wants nor does it allow patentees to justifiably enforce their patents against infringers. On balance, the EPO's 'further technical effect' test for software-implemented inventions is probably the best thing we have to define the boundary between what is patentable and what is not. In the UK this has morphed into the four step Aerotel/Macrossan test (see the recent post on the Nintendo decision), but the end result is pretty much the same. The boundary is obviously one that is grey rather than clear cut black and white, and may in some cases be prone to subjective arguments, but it is better than excluding a whole type of infringement or alternatively excluding a whole genus of inventions.

Thanks to all for a very stimulating discussion. Please carry on if you wish, but I will now move on.

Anonymous said...

IPcat says: "Why should the development, use, distribution etc. of computer software /*itself*/ be classed as infringing?"

If you look at just "distribution" , it's a very good question that urgently needs an answer. In FFIIs 10 Core Clarifications you find one attempt to answer it: http://swpat.ffii.org/papers/europarl0309/amends05/juri0504/mgp/

IIRC, a corresponding amendment to the principle of freedom of publication was tabled in the first reading of the Software Patents Directive. Interestingly, in the voting list prepared by MEP Arelne McCarthy, it was deemed to be "caduc" (void) if program claims would be carried. Conflicting principles, so to speak.

The understanding of the program claims doctrine is Sweden at the time the directive was prepared was is indeed that you infringe by publication of source code.

Software patents are not all about program claims, but program claims makes it evident you have overlapping and contradictory property schemes for computer software. While this might not be a problem in other IP areas, it is a problem in the software seactor since we evidently have merging business models based on copyright ownership and freedom of publication.

For a concrete example, have a look at http://gauss.ffii.org/PatentView/EP1343166/Comments

//Erik

Gerontius said...

I went away for a while for other commitments, but just want to make one final point about the UK machine tools article.

Irrespective of the fact that I'd be more willing to trust ZDnet with the task of removing my left testicle than I would with the task of writing a balanced article on IP, those people saying they do not want patent (ie Delcam) are programmers, not manufacturers. They supply software to control machines such as my automatic cement mixing machine. In my example this company would be the potential infringer, not the patentee since all they would be producing would be a trivial computer program that simply told a machine how to make the infringing cement. I still feel that such a company should not be able to sell software that is specifically geared to cause a machine/computer to carry out an infringing process - this does not prevent them selling general control programs of course. Neverthless, I also agree that their computer program should almost certainly not be patentable by itself.

My other comment is that the majority of "software" patents I see do not contribute something that is merely "mathematics/mental acts/displaying information/rules of organisation" although I'm sure we can both pull out examples of patents from both the UKPO and the EPO that do little more than those things. Yes, these fields will be involved in pretty much any patent involving software, but the fact that they constitute a PART of the larger invention should not exclude patent protection if that larger invention involves something that is not itself excluded. So, in the Nintendo case, I can see nothing inventive that lies outside excluded subject matter. On the other hand, when it comes to compression/encryption technology, and while these fields owe a HUGE amount to mathematics, I see something (which I cannot yet define in words, but will work on it for future debate) that does lie outside merely abstract calculations, so will continue to support patentability in those areas.

BTW, patents on MP3's haven't prevented it becoming the most popular format and the Ogg/Vorbis illustrates how the need to design workarounds for patented processes can spur innovation.

Oh, sorry, one final point which is hinted at above. "Software patent" are not a simple single field when it comes to patentability. As pointed out they can relate to many different excluded categories of subject matter. Perhaps the problem with defining the scope of patentability lies in the fact that everyone is trying to tackle too much in one go, rather than separating it out into chunks? e.g. some software is better protected by copyright, but ideas for doing something that could be implemented in 20 different ways in software are not copywritable, and these ares need different approaches. Something for further investigation?

plh said...

"the majority of "software" patents I see do not contribute something that is merely "mathematics/mental acts/displaying information/rules of organisation""

Then they're probably not software patents and we needn't worry about them :)

"On the other hand, when it comes to compression/encryption technology, and while these fields owe a HUGE amount to mathematics, I see something (which I cannot yet define in words, but will work on it for future debate) that does lie outside merely abstract calculations, so will continue to support patentability in those areas."

Intriguing! Platonic mysticism as a rationale for patentability? I'm sure the people picking their way through the compression/encryption patent minefields would greatly appreciate that ;-)

http://www.ross.net/compression/index.html

"BTW, patents on MP3's haven't prevented it becoming the most popular format and the Ogg/Vorbis illustrates how the need to design workarounds for patented processes can spur innovation."

And how patents can provide the means to threaten it:

"We doubt very much that they are not using Fraunhofer and Thomson intellectual property," Linde said. "We think it is likely they are infringing."

http://news.com.com/2100-1023-249710.html

and restrict it:

http://dirac.sourceforge.net/faq.html#a7

"Something for further investigation?"

Sure - provided it's an economically informed investigation, constrained by a Machlupian principle.

Gerontius said...

plh

First, you have the typically pejorative view of "software patent" as being "any patent that I don't think should be granted". Under some of the widest ranging definitions (see Jonas Maebe's references to BEssen/Hunt), Immersion's US patent that they enforced against Sony's PS2 controller counts as a software patent because it peripherally uses software.

Also, given that years of political wrangling at multiple levels of the EU failed to provide a wording for the CII directive that pleased anyone, I think it's unfair to expect me to be able to put my reasons why I think certain things are patentable into words. In essence, I see them as an advancement of technology in a way that Mario Kart probably isn't.

I'm well aware that MP3 patents and LZW patents are unpopular. But speed limits on roads are unpopular, too. I happen to support those as well (although sometimes I might accidentally break them). I have seen no evidence that either patents on compression techniques or speed limits do more harm than good. Yes, various studies have shown that some types of software patent, that really are trivial and have therefore probably been granted in error, are highly damaging. But such studies cannot be expanded to ALL software patents, particularly since (as you illustrate so well yourself) the definition of "software patent" is completely mutable.

plh said...

"First, you have the typically pejorative view of "software patent" as being "any patent that I don't think should be granted"."

I do? Even if I did (and I don't) I certainly don't recall saying so here!

"But speed limits on roads are unpopular, too."

If the speed limits in question were lower bounds, already too high and being driven ever upwards due to pressure from special interest groups, then the comparison would be appropriate perhaps :)

"I have seen no evidence...But such studies cannot be expanded to ALL software patents"

I have seen no evidence that the benefits of software patents outweigh the harm (usually the converse is true or the conclusion is neutral) and the issue of poor quality patents is, though perhaps a greater problem with software patents, a separate matter. But to extend subject matter to all software and then ask for evidence of harm in each of the myriad different fields and industries affected, before - maybe - considering doing something about it is economically irrational anyway.

If there is some field or industry in which there is good economic reason to believe (and preferably consensus among those engaged in it) that software patents would be significantly beneficial (and certainly not merely unlikely to do much harm), fair enough. But in the meantime, and in view of the economically irresponsible record of the EPO, I'd like to see a CII Directive that has the backing of patent system economists, instead of one which encourages them to petition the EP with warnings of its folly.

http://www.researchineurope.org/policy/patentdirltr.htm

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