For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Wednesday, 3 September 2008

World day against software patents

24 September 2008 will be the fifth anniversary of the first reading in the European parliament of the highly amended and ultimately ill-fated EC directive on computer-implemented inventions. The directive, as regular IPKat readers will know, was originally designed to codify the practice that was already in place at the European patent office so that any discrepancies between EPO practice and the application of national laws throughout the EU member states could be minimised. After a concerted effort by anti-patent lobbyists, resulting in widespread confusion and misinformation about what the directive was supposed to achieve, the directive was scrapped in 2005, largely due to being scuppered by numerous conflicting and nonsensical amendments. European patent office practice, of course, went on as normal.

Marking this dubious anniversary, the grandly-titled Foundation for a Free Information Infrastructure (FFII) has announced that 24 September 2008 will be known as "World day against software patents". On stopsoftwarepatents.org, they would like us all to consider the following:

"The issue of software patents is a global one, and several governments and patent offices around the world continue to grant software & business method patents on a daily basis; they are pushing for legal codification of the practice, such as currently in New Zealand and India, and via the misappropriation of Free Trade Agreement instruments;

Previous initiatives as the Noepatents.org petition (approx. 400 000) at the EU level are outdated (notably on the issues of the central EU patent court) and not open for signatures anymore.

Companies still view software patents as assets [IPKat comment: well, what else would they be?]. They have yet to understand that software patents should also be considered liabilities, especially if they are in the hands of trolls [IPKat comment: define troll? IBM? Microsoft? Google? Nathan Myhrvold?].

Time is on our side as litigation gets spread wide: Markets learn the hard way that you may not leave reform to patent professionals [IPKat comment: so we should put reform in the hands of people who know nothing about patent law instead?]. Patent litigation is becoming wide spread in key markets such as the financial sector, and will be more wide spread in the software sector in the forthcoming years due to the number of applications pending [IPKat comment: so what is the link between pendency and litigation? I think we should be told];

The United States needs a larger coalition of business and civil society against software patents [IPKat comment: why?]

The lobby gap makes Congress and Senate, the Court of Appeals for the Federal Circuit (CAFC) and the Supreme Court susceptible to lobbying from patent industries, holders and patent professionals. American software developers have been intimidated by the patent establishment and should make themselves heard [IPKat comment: this sounds like a classic paranoid conspiracy theory line].

Companies affected by software patent litigation have been lobbying for reform, but their advocacy for "quality" and "lower damages" aims at symptoms rather than the roots of the problem [IPKat comment: totally untrue; increased quality of examination is the key to avoiding bad patents, in whatever field they may be. The problem of excessive damages is peculiar to the US, and should be addressed].

For these reasons,

We declare the 24 September as the World Day Against Software Patents, in commemoration of the European Parliament First Reading in 2003 with amendments stopping the harmful patenting of software, guaranteeing that software programmers and businesses can safely benefit from the fruits of their work under copyright law.

A Global Petition will be launched which asks to stop software patents, with some localised versions of the petition for specific regions, such as New Zealand, India, United States and Europe. The public will be invited to comment on the draft between the 1st and the 23rd September."
The IPKat is, as readers might suspect, highly sceptical about the real motives and aims of this particular anti-patent lobby. If they had their way, we would see many worthwhile inventions fail to get any realistic level of protection outside the limited range of copyright.  Any reform of the system to address the real underlying problem of how to improve patent quality to minimise the number of 'bad' patents that get granted (and most of them are undoubtedly in the US, which has its own particular examination issues) will, the IPKat suspects, never be enough for the FFII.  Merpel would like to controversially point out that the ideological basis of the anti-patent lobbyists seem to have a lot in common with other single issue pressure groups like anti-globalisationists and man-made global warming alarmists; nothing the rest of us can do will ever be enough for them.

39 comments:

Anonymous said...

This is another example of the (mis/ab)use of IP law to a political end. It reminds me of the debate on biotechnology patents. Lobbyists, who speak without a proper popular mandate, but who have a political agenda, interfere with and cloud the law-making process. Since it is unlikely that the law would be amended in a way which satisfies them, they are content to sabotage the legislative process.

As Ipkat rightly points out, if a technical invention is implemented by a computer program, this should not automatically be excluded from patentability. Art. 52 EPC excludes patents directed to "computer programs... as such " but not technical inventions implemented by computer programs. The IP offices have to walk a tight-rope between providing protection where it is rightly due and not providing it where it is unjustified. The directive would have provided a legal basis for harmonisation between the EU states. It would also have provided a strong basis for amendment of the EPC regulatory provisions (as the biotechnology directive was), which would then also have applied indirectly via the EPC to the EPC states which do not belong to the EU (Norway, Switzerland etc). The directive would also have had the effect of making the decisions from the various courts of the member states and the EPO Board of Appeal more predictable and consistent (at least the tests which they would use to decide on the exclusion would have been harmonised, although different courts might still have come to different conclusions at least they would be applying the same principles).

Let us hope that this question can be resolved. The current uncertainty probably has the opposite effect than that which was intended, since the disharmony and confusion currently resulting from the lack of any directive, allows the granting of dubious patent rights in certain jurisdictions.

Anonymous said...

I have no problem with people being against "software" patents per se, but it is just so disappointing to see there arguments get so many of the facts plain wrong.

I do agree that leaving Patent reform solely to Patent professionals may be a little self-serving but they must be involved, as who else actually understands what the current law is? Clearly the FFII do not.

Gerontius said...

One quick comment on the opening paragraph of the statement, which the Kat didn't comment on themselves.

"several governments and patent offices around the world continue to grant software & business method patents on a daily basis"

Wrong, I believe. As far as I am aware, there is not a single patent office in the world that grants software patents, business method patents or, indeed, any patents on a daily basis. Most patent offices grant patents on a weekly basis. UK(I)PO day is today, by the way, and 95 patents have been granted: http://www.ipo.gov.uk/patent/p-journal/p-pj/p-pj

This sound like pedantry, but actually it isn't in a debate like this where the number of patents being granted becomes an important discussion point. Someone could say that, "on day X, 50 bad patents were granted. Multiply that up through the year (about 250 working days) and you have 12,500 bad patents a year. If this many bad patents are being granted, then the situation cannot be salvaged. Ban all patents!"

Actually, since for six out of seven days in a week no patents are granted by any particular patent office, the multiplication factor is only 52 - a factor of five different, which might still lead to a large number of "bad" patents, but at least then you can start having a sensible discussion.

And yes, there are people clueless enough to use this argument and that fail to understand why they're wrong even when it's explained to them.

Euro-pedant said...

Pedantry or what? Actually, you are being pedantically wrong. The EPO does publish "patents" weekly (I think that still applies) but that is not the date of grant but rather the publication of the notice of intention to grant. The actual decision to grant is made on any working day and is applicable from the date of filing which can be any day of the year. Thus indeed it can be considered that the patents are granted "every day".

Paul Jakma said...

So your argument is that those in the computer industry should have no say on how patents affect them, because they are not qualified in patent law?

Also, can we assume from your "man-made global warming alarmists" comment that you are a sceptic? Ad-hominem I know, but that raises serious questions over your judgement generally.

lil_cain said...

Software is just math. And math is not patentable. So why would software be patentable?

AR said...

**Answers**

[IPKat comment: well, what else would they be?] -- "liabilities".

Define troll - no need to define trolls but generally a troll is a patent royalty company with a small portfolio of patents and no other product. A company which main business is to sue competitors.

define troll? IBM? Microsoft? Google? Nathan Myhrvold? - most of them would not qualify as trolls but are indeed victims of trolls.

[IPKat comment: so we should put reform in the hands of people who know nothing about patent law instead?] - yes, in the hands of the legislator. patent professionals have in the past manipulated the decision makers following their commercial agenda. What shall be patentable or not is a matter where lawyers are not qualified. They for instance oppose natural forces teaching but won't propose us a teaching that achieves the same results. And this is what all, including lawyers, care about.

[IPKat comment: so what is the link between pendency and litigation? I think we should be told] - pending == upcoming

[IPKat comment: why?] - because business will be able to talk businessm and businesses want swpat reform (as opposed to lawyers)

[IPKat comment: this sounds like a classic paranoid conspiracy theory line]. no, it is simple: if you are not represented in legislative debates, no one will listen to you.

[IPKat comment: totally untrue; increased quality of examination is the key to avoiding bad patents, in whatever field they may be. The problem of excessive damages is peculiar to the US, and should be addressed] - we want to overcome the situation by a reform of substantive patent law. We don't care for other fields than software.

LetGodSortEmOut said...

Clearly no-one patents computer programs as such. The patent offices grant patents on the mathematical algorithms and ideas which computer programs implement. They have to do this, or patent trolls and dying firms would lose out on important revenue streams and the whole patent industry would grind to a halt.

Personally I think they've done a great job of resisting the undue political machinations of some extreme sectors of the software sector, who clearly have no idea of what is right and wrong, and nothing to say when it comes to this vital area of making money.

Think of the lawyers' children!

Anonymous said...

The application of math (maths over here in the UK) to a problem is patentable (and always has been), although the mathematics itself is not patenable.

So your argument would suggest that the application of software to a problem is patentable.

This is an over-simplification but QED.

Francis Davey said...

I think part of the problem is precisely that there is a perception amongst programmers that entirely obvious ideas (obvious to them) have been and are being patented as algorithms/business methods implemented in a device, where that implementation is so non-specific as to render the patent into an effective way of preventing anyone else using that same algorithm or idea (as ex hypothesi it will also have to be implemented in a device to be useful - few of us run code in our heads).

Now that perception may be wrong or exaggerated and surely it is in part based on practice in the US which has its own set of problems, but I have seen in the field (as a lawyer) small businesses threatened with infringement action against patents that try to claim a right to such non-specific implementations of ideas that they might as well be pure idea patents. I can't be more specific for obvious reasons.

So I think there is a problem. It may be that the solution is a generally higher quality patent process, but it is important to try and engage with this unhappiness.

Also, one does not have to be a conspiracy theorist to be concerned at the disproportionate influence industry lobby groups do have over the development of IP law - this problem is well documented by peer reviewed research.

The solution (as I have said above) is to try to engage with the deep unhappiness amongst IT practitioners out there even if that is not reflected in the same way amongst legal practitioners.

AR said...

@anonymous: The question of what is patentable subject matter is a political one and should be guided by economical expertise. We don't agree with the interpretation of the EPC 52.2 of the EPO boards of appealm in particular with the "as such" interpretation. Your argument is based on positivism.

@Anonymous2: I think FFII rightfully understood that the current interpretation of the EPO permits software patenting without any authorisation by the legislator to apply patentability to these fields.

@Gerontiusm euro-pendant: It was not an argument based on the publication procedures of patent offices but that every day patent examiners around the world work on patent grants for software patents. Software patents are not fringe cases but it is a continuous practise.

@Paul Jakma: The legislator should decide what is patentable or not, ideally in a democratic process and guided by a democratic process.

@LetGodSortEmOut: The problem is that we dispute that there are "software inventions" according to the EPC which would imply their patentability. What is a program claim if not a claim on a class of computer programs? Explain what you mean with "software as such" as opposed to other software.

Ch. Tronche said...

First, I must tell that I’m a former FFII member (and a regular IPkat reader).

I understand that the somewhat dry style of the FFII release is uselessly offendant to IP lawyers around, and that this doesn’t add anything to the debate.

This said, I met many IP professionnals at FFII, so swpat involved people shouldn’t underestimate the depth of FFII analysis. It also means that not every IP lawyer is in favor of software patents, far from it.

I’m personally against software patent on the basis of economic arguments: software is fundamentally different from physical products in term of production (copy) and distribution time and cost: zero in the software world, most of the problem in the physical world. It thus makes no economical sense to grant a twenty years monopoly for software, much less an algorithm.

There’s however a thought I’d like to share about law firms (especially IP law firms), some light was shed onto by the derailing of the EC directive on the so-called computer implemented inventions, largely due to the FFII efforts.

Software patents essentially don’t exist in the EU law, and are under attack in the US. No one can predict where it will end. May be something close to the ill-fated directive on CII will be adopted eventually, may be software patent will finally be rejected in the US, hard to tell. To act in the best interest of their clients, law firms should make this clear, at the very least.

Unhappily, this is hardly the case, and I know of at least one IP counsel in France, not worse than any other, that took the adoption of the CII directive for granted (self delusion ?). Some of its startup clients, that I also know of, so advised, applied for patent on software terms. At least one of these startups were let down by its VC once the directive was rejected, on the basis the business plan was no longer sustainable with no way to protect the product. The point is that such episodes globally undermine the trust between startups and law firms, and this is never a sane situation.

If you’re a good IP lawyer, there’s ton of money to make in a world without software patents, so tell your client the truth: patents don’t make software defensible.

PS: I’m the happy owner of trade marks, and I’ve very good relations with my IP lawyers.

Anonymous said...

@Anonymous2: I think FFII rightfully understood that the current interpretation of the EPO permits software patenting without any authorisation by the legislator to apply patentability to these fields.

Any interpretation of the EPC is intended to reflect what the legislator intended - in fact decisions often refer to the legislator's preparatory notes (Travaux pr├ęparatoires).

Anonymous said...

Dear AR - I think you have missed my point. There clearly is room for different intrepretations of the existing legislation. To turn your argument on its head - if we are to ignore the "as such" qualification in Art. 52 EPC, then any and all technical inventions which require implementation by a computer program are excluded from patentability - this is no more what was intended by the legislator than the patenting of computer programs in their own right (i.e. "as such"). These two points of view represent the two poles of this debate, neither of which I subscribe to. To label this analysis as positivism, when it is simply common sense is a little odd.

The point is that an agreement must be reached on what is acceptable and what is not. This is done by public debate involving all interested circles and all opinions, with no one group being able to sabotage the consultation- or law making process either by misinformation or tactical abuses (e.g. by lobyying different law-makers to make successive amendments to proposed legislation leading to an unworkable proposal).

Special interest groups have the right to put forward their opinions, but they do not have the right to subvert the law making process, which will inevitably be a compromise which will not satisfy them fully. It is right that a harmonised approach exists in between the two extremes (nothing or everything is patentable in this field) both for legal (see above) and political reasons.

Furthermore, In Europe the legislative process must be a democratic process (not "ideally a democratic process"). Otherwise, why would we bother vote for our legislative bodies?

Gerontius said...

@Euro-pedant
Actually, you're wrong since the decision to grant does not take effect until it is mentioned in the Bulletin, which only happens once a week.

@AR
I did not intend to imply that the statement was deliberately misleading, but it is misleading and I have explained that it important to get it right since misunderstanding how patents are granted can and does lead to inflation in the figures of the number of patents being granted.

@Francis Davey
You're absoutely correct that the problem is unhappiness in the field. Unfortunately, this unhappiness is self-perpetuating due to the unrealistic expectations of those in the field caused by the misleading statements by the anti-software-patent campaigners.

There's an implication running through much of this discussion that software patents are a new thing that are being forced on an unsuspecting world. However, it's important to realise that software patents are not something that are being newly introduced. There have been patents on software for as long as there has been software that was used for more than adding up accounts more quickly than could be done on paper. The EPO Vicom decision, although from 1985, was based on an application filed in 1978. You can also easily find things that would be called software patents going back to the early 70s in the US and, since 1972, the US Supreme Court has hinted that a computer program would be patentable if the process being performed by the programmed computer (eg curing rubber) were patentable. True, there was a boom in software patents, but that boom tied in with the dot.com bubble (unsurprisingly).

The nature of software patents has changed over time and they are now more likely to be infringed by an individual programmer sitting at his desk rather than a huge corporation. But that ties in with the development of the computer industry putting the power to write and publish computer programs in the hands of the individual programmer.

The problem is not one of extending scope of software protection, but of the ever-burgeoning reach of software itself and the ease with which a software patent can be infringed. As the FFII themselves point out, you don't need a factory to sell millions of copies of a piece of software (any more).

The new player on the field is actually the business method patent. Business methods have been around since the dawn of time, but patents on them have not. Business method patents started by jumping on the back of software patents (in the US, JP and AU) but are now gaining a life of their own separate from their software implementation (in the US). They are the real target of most anti-software-patent campaigners who mistakingly see them as synonymous with software patents because of the common link in the origin of business method patents.

Business method patents are also usually the target when people say a software patent is obvious. I've never seen anyone suggest that LZW (as claimed in the "GIF" patent) was obvious and other software patents that have been called obvious are usually done so in retrospect, 5 or 10 years down the line when they only look obvious because they have been succesfully incorporated into a wide range of technologies despite the patent protection which, we're told, would hold the computer industry back. It's also scary how often people claim a patent is obvious having read only the abstract or by saying that a feature in claim 2 in obvious. Claim 1 is where it's at, people!

So, it's often said that software patents are a new bane on society. It's often said that software patents are all obvious. But it's also often said that if the wind changes direction, your face will stay like that. Just because lots of people say something it true, doesn't make it true, but it can make people afraid of the repercussions if it is. Fear is the enemy, not software patents, and the trolls (and there are trolls even if we don't quite know who they are) prey on that fear. FFII, you have a duty to stop putting fear in the hearts of programmers as you're only feeding the trolls by doing so.

IP Mouse said...

Considering the FFII's arguments, the IPKat appears to be right in that there is only an ideological basis for their general rejection of software patents, including the so-called software implemented inventions. However, western history shows that the "Time is on our side" argument relied upon by the FFII will go exactly in the opposite direction when there is no proper legal or scientific basis supporting the ideology.
An example of this development appears to be the IPKat itself, because not long ago it still rejected the idea of patenting software implemented inventions ....

zoobab said...

"Furthermore, In Europe the legislative process must be a democratic process (not "ideally a democratic process"). Otherwise, why would we bother vote for our legislative bodies?"

Do you vote to elect the Council members?

Especially the ones that participate in the Council Working Group on Patents:

http://press.ffii.org/Press_releases/Patent_administrators_preempting_parliaments_in_Council

AR said...

"There clearly is room for different intrepretations of the existing legislation. To turn your argument on its head - if we are to ignore the "as such" qualification in Art. 52 EPC, then any and all technical inventions which require implementation by a computer program are excluded from patentability - this is no more what was intended by the legislator than the patenting of computer programs in their own right (i.e. "as such")."

That is something different and has nothing to do with the as such provision. In fact it is safe to delete the phrase "as such" from EPC 52.3 without any change of meaning. Some national implementations don't carry it as you know.

You reverse the economic burden of proof. You don't need to prove that you don't need a patent system for a certain field but you need to prove that it is justified in a certain field.

We can argue a lot over positive law but the fact is that the EPO BoA changed the interpretation and thus the normative scope of patent law.

Normative questions are political ones and we can even totally abstract from the EPC as the EPC is an expression of normative will.

AR said...

@ipkat, I missed this one: Any reform of the system to address the real underlying problem of how to improve patent quality to minimise the number of 'bad' patents that get granted (and most of them are undoubtedly in the US, which has its own particular examination issues) will, the IPKat suspects, never be enough for the FFII.

The FFII position is well known and we don't see such a quality reform happening: FFII aims for substantive clarification. The FFII is also not behind the campaign but backs it.

Merpel would like to controversially point out that the ideological basis of the anti-patent lobbyists seem to have a lot in common with other single issue pressure groups like anti-globalisationists and man-made global warming alarmists; nothing the rest of us can do will ever be enough for them.

Nice try, but Merpel knows he is wrong. Patent law is just a tool for the economy. If no one can prove that patent law suits the needs of the software market I don't see any reason to apply it. The commercial and institutional interests of patent offices and patent lawyers are clearly irrelevant.

Paul Jakma said...

AR: I think my feathers were ruffled by statements in the article such as:

"Markets learn the hard way that you may not leave reform to patent professionals [IPKat comment: so we should put reform in the hands of people who know nothing about patent law instead?]."

The IPKat comment patently is misreading the comment, misinterpreting it as an either/or statement and seemingly condescending of the opinions of those actually affected by patents. I of course agree with you that reform should be driven through democratic processes, though I took note of the extra-ordinary lengths the only democratically elected body in the EU had to go to to prevent the commision from putting through the CII (the commision having ignored a previous motion of the EP).

Gerontius: LZW was special, but it is pure math. Why should it then be patentable just because the information you applied it to was a GIF format image, or because that math is implemented on a computer (no longer software, "as such", some argue)?

You're essentially arguing that applied math should be patentable, right?

zoobab said...

@Merpel

"IPKat comment: so we should put reform in the hands of people who know nothing about patent law instead?"

I would ask another question:

"So we should put reform in the hands of people who know nothing about software programming instead?"

plh said...

“They are the real target of most anti-software-patent campaigners who mistakingly see them as synonymous with software patents because of the common link in the origin of business method patents.”

Nonsense. (As can be easily seen from the FFII website(s) or earlier campaign sites such as that of the LPF: http://progfree.org/Patents/patents.html)

“Business method patents are also usually the target when people say a software patent is obvious. I've never seen anyone suggest that LZW (as claimed in the "GIF" patent) was obvious and other software patents that have been called obvious are usually done so in retrospect, 5 or 10 years down the line when they only look obvious because...”

Nonsense.

Castigation of the latest obvious software patent is a popular Internet sport and only some of them can be described as business methods. The most recent one to hit the blogs was “Method and system for navigating paginated content in page-based increments”.

I wouldn't presume to call it obvious but LZW was obvious enough to get patented twice and R.L.E. should be obvious even to the most mathematically inept:

http://www.patentstorm.us/patents/4586027/claims.html
http://www.ross.net/compression/patents_notes_from_ccfaq.html

More to the point: there are oodles of obvious software patents that are not business method patents - easily enough to keep the naïve anti-obvious-software-patent crowd exercised - but no-one has ever seriously campaigned or is now seriously campaigning against software patents solely on the grounds that there are a lot of obvious ones.

Ar said...

@Anonymous: Indeed, the EPC is international law. But a BoA is no court but an administrative appeal chamber (imho it should not even be considered to constitute "case law") and members of the chambers are not qualified as judges. In fact some real judges in national courts dissented with the BoA interpretation which gave grounds to the CII-Directive to enforce the EPO opinion.

You further know that the EPO is de facto governed by the national patent offices and shielded against influences from the democratically elected decision makers. MPs have hardly any influence on the EPO. Their parliament resolutions are ignored. Even worse, the EPO lobbies parliament and writes industry reports and argues on normative grounds.

The scope of the petition campaign is international. It is not even relevant here if patent offices do grant patents and under which legal base (positive question). The purpose of the campaign is directed towards a normative decision. Normative is the political matter and here positive considerations are more or less irrelevant.

Generals should not lobby politicians whether to go to war or not. Patent Offices with a public mission and persons who earn their money with patents have to be neutral observers regarding the question what should be patentable. Currently they go beyond, lobby and propagate expansive patent regimes and ignore the software market opinion. The goal of the petition is to organise the stakeholders and keep them insisting on meaningful reforms. And here the answer "why?" can be easily explained: We believe soft patents are dangerous and want to overcome the software patent regime. In the US the software market lacks a movement as was incubated by the FFII and lobby attempts for patent reform fail because the US patent system casts its well-known Red herrings such as non-obviousness and other players such as Pharma don't support it.

IP Mouse said...

Disappointing to read that there is so little knowledge about the function, organisational position and competence of the Boards of Appeal in the EPO. What is even worse is AR's ignorance of the necessity of a court's independence. How lucky we are that in most democratic countries the courts are shielded against outside influences and in particular against "influences from the democratically elected decision makers" (have look at Italy....). Please let the courts decide on the basis of the law only, because that is their task. That the law can be changed by a democratic process is a totally different matter. Since in such process the FFII has not been successful the question appears justified whether the FFII is indeed interested in a democratic decision making process because in such a process all arguments are scrutinised for their relevance.
Furthermore, anybody with some knowledge in the matter of software implemented inventions is very well able to distinguish between the American and European patenting approach and mentioning them in one breath can only serve an obvious goal....

zoobab said...

"That the law can be changed by a democratic process is a totally different matter. Since in such process the FFII has not been successful the question appears justified whether the FFII is indeed interested in a democratic decision making process because in such a process all arguments are scrutinised for their relevance."

@IPMouse

Can you precise if you consider the Council and their NPO advisors as part of the democracy?

Rcalvo said...

@zoobab

In the Council sit the ministers of the national governments. Of course, they are rarely directly elected, but neither is the President of the US (he's indirectly elected through the electoral college), and not many people claim that the US aren't democratic. So, the Council is arguably a democratic body, even if an indirectly elected one. Indeed there's a good argument that the Council is, if anything, more democratic than the Parliament, considering the ludicrously low voter participation rates at European elections.

Also, you appear slightly misguided about the role of advisors. MEPs also have their own unelected advisors, often with far less knowledge of IP or software than any NPO advisor to the Council, and far more open to interested biases.

I'd actually welcome a more powerful EP, even if watching its inner workings never fails to remind me of Bismarck's pithy sentence: "Laws are like sausages, it's better not to know how they are made."

The FFII's campaign is already damaged by the fact that it fails to provide a definition of "software patent". How can you campaign against something without first setting out what it actually is? I guess that a patent containing a claim over a "computer program" is clearly a software patent, but what if, for example, the patent contains only process claims? The FFII has previously poured a great deal of scorn on the phrase "computer-implemented invention", but it is actually far less ambiguous than "software patent".

The "anti-software-patent" camp claims that software is special because it is reproductible without hardly any marginal cost, but then this was already true of a great many patented products (never mind processes!) prior to the computer age. This is a clear red herring.

The way in which the FFII presents itself as advocates of the "little man" against "heartless corporations and greedy lawyers" (this last thing regardless of the fact that European patent attorneys are rarely lawyers) is a brilliant PR coup. After all, FFII does also enjoy the financial support of quite a few rather large companies, such as Red Hat, and we also witnessed how a celebrated former head of FFII ("no lobbyist as such") easily went on to lobby on behalf of the richest football clubs in Europe.

I must agree on almost every point with the IPKat, even if I deeply regret that he had to include also that utterly misguided and pointless comment about anthropogenic global warming.

zoobab said...

@rcalvo

Seperation of Powers is the base, I cannot agree with you that the Government (Executive) should be part of the Legislative power.

For the definition of a software patent, we have a good one here:

"A software patent is a right to litigate against authors of software granted to an applicant as a reward for the disclosure of hot air."

There is also CAI (computer-aided invention):

http://eupat.ffii.org/papiere/europarl0309/juri0504/cxidef.en.html

CII is ambiguous, since only software is implemented in a computer.

And of course software is special, the economy of immaterial works is different of material works.

And I would say the real enemy is not large corporations, but their patent department.

David said...

Pointless? Perhaps. Utterly misguided? As another commenter observes, time will tell.

Anonymous said...

This article seems to have opened up a seething nest of vipers!

@zoobab - the fact that software is an immatieral work is, well, immaterial. Patents are also granted for processes and uses - i.e. for actions as well as for products and I don't hear anyone arguing that these should be excluded. You define a software patent as a disclosure of hot air. I am not sure your hard working programmers would appreciate that remark. But hey, in a political debate Hacker's law* determines that "Hot air rises".

@Rcalvo - I loved the quote - very appropriate.

* Jim Hacker, fictional prime minister of the UK

rcalvo said...

@david, leaving apart the overwhelming scientific evidence for anthropogenic global warming (and having been to the Arctic, my own lying eyes), the comment was misguided as it opened an easy flank to those who would see you as merely the shills of "Big Business"...

IPMouse said...

Difficult to discuss when commenters do not appear to have sufficient knowledge of the principles of democracy.
Wikipedia tells us that "Parliamentary democracies do not have distinct separation of powers. The executive (often a prime minister) and the Cabinet ("government") are drawn from the legislature (parliament). This is the principle of responsible government. However, although the legislative and executive branches are connected, in parliamentary systems there is usually a independent judiciary".
Needless to say that I agree with RCALVO, in particular the last point made (in his earlier comment).

David said...

I had to look up what it means, after it was mentioned earlier.

zoobab said...

In a democracy, only the elected people are able to **vote**.

As far as I know, Europe and its Council of Ministers as a co-legislator is an example of a system where part of the legislator has not been elected.

And whether the Government has been elected by the Parliament does not compromises the fact that the Government is still not allowed to vote on a law.

plh said...

“The FFII's campaign is already damaged by the fact that it fails to provide a definition of "software patent".”

That is not true, Rcalvo. On the FFII's “uk-parl” mailing list during the year or so building up to the proposed CII Directive, the vast majority of the discusssion seemed to be about what should and should not be patentable software-wise and how exactly this should be reflected in a modified version of that Directive. A suitable negative 'definition' was found, eventually added to one or more of the EP amendments, and even tested during the UKPO 'workshops' arranged by Lord Sainsbury:

"Technical contribution" means a contribution made by a claimed invention, considered as a whole, to the state of the art in a field of technology. "Technical" means belonging to a field of technology.

New teaching about the use of controllable forces of nature under the control of a computer program, beyond the implementation of the data processing procedure itself, is technical.

The processing, handling, presentation, and representation of information by a computer program is not technical, even where technical devices are employed for such purposes.

plh said...

“The "anti-software-patent" camp claims that software is special because it is reproductible without hardly any marginal cost, but then this was already true of a great many patented products (never mind processes!) prior to the computer age. This is a clear red herring.”

A male red herring made of straw, Rcalvo ;-) While that may well be one claim made by some, it is certainly not the only or most important of a number of characteristics of software which the "anti-software-patent" camp claim combine to make the patent system and software especially unsuited. Have you not read what they (e.g. Kahin, FFII, Bessen...) actually say?

Rcalvo said...

@zoobab: "And whether the Government has been elected by the Parliament does not compromises the fact that the Government is still not allowed to vote on a law."

Actually, in many European countries, such as Spain, members of the Government who are also elected to parliament (they do not need to be) are perfectly allowed to vote on laws. And, in other countries, such as Holland, "separation of powers" means that elected members of parliament that enter the government must give up entirely their seats in parliament (paradoxically, Dutch governments then have a power of selective enforcement of laws which would most definitely be seen as an infringement of the principle of separation of powers in any other place).

I am no great fan of the Council, but this is just to say that the principle of separation of powers is interpreted in many different ways across Europe and elsewhere, and that what I see as the most important part (an independent judiciary) is well preserved in the EU's institutional arrangements.

zoobab said...

"I see as the most important part (an independent judiciary) is well preserved in the EU's institutional arrangements."

I think technical judges (aka Patent Attorneys as judges without a law degree) are part of the EU-EPLA central patent court project.

So "independent judiciary" at the EU level is not guaranteed.

When the judges are captive of the patent system, it is a recipe for a disaster:

http://www.eupaco.org/local--files/eupaco2/John%20Duffy.pdf

See slides p12 and p13 about the Pumpkin bag.

Rcalvo said...

@plh: Actually, what you write there is not a definition of "software patent", negative or otherwise, but rather a definition of which software patents should be allowable and which shouldn't, and as such an implicit admission of at least some "software patents". That seems to be in contradiction to FFII's petition (which, moreover, does not point to that or any other definition).

Also, having read the various EP amendments incorporating that language, I'm familiar with it (thanks for confirming the source of inspiration of those MEPs). The problem is, it is also self-contradictory and no more clear-cut than any current criteria concerning the patentability of software. In fact, it's far worse, and not just from a "pro-software patents"point of view. Leaving apart the arduous matter of how quantum theory reduces all "controllable forces of nature" to information flows, where does it leave, for instance, image or sound treatment or recognition programs? On one hand, they relate to the use of controllable forces of nature (namely light or sound) under the control of a computer program, beyond the implementation of the data processing procedure itself. On the other hand, they arguably just relate to the processing, handling, presentation, and representation of information. So, are they technical or not?

Even mere user interfaces could pass the "controllable forces of nature" test: after all, the cognitive processes in our brain are also a "controllable force of nature", and any improvement in a user interface thus a "new teaching about the use of controllable forces of nature".

The same argument could even be made in favour of business method patents, even without computers involved, certainly for those related to the advertising field! Or aren't the various human instincts that advertisers cleverly (and often inventively) exploit also "controllable forces of nature"?

What I pointed out as a red herring is definitely not a straw man. Indeed, it has been repeatedly used in this very thread. See what ch. tronche posted:

I’m personally against software patent on the basis of economic arguments: software is fundamentally different from physical products in term of production (copy) and distribution time and cost: zero in the software world, most of the problem in the physical world. It thus makes no economical sense to grant a twenty years monopoly for software, much less an algorithm.

zoobab has also made the same point, in a more brief, if rather less elegant manner:

And of course software is special, the economy of immaterial works is different of material works.

This "economic argument" about the "otherness of software" is frequently repeated indeed (mostly by economists with little direct experience of how either the software industry or patents work), and in fact the only argument of the "anti-software-patent" camp which I regard as somewhat coherent (most other criticism of software patents could just as easily be adressed at patents in any other technology field). Unfortunately for you, it is also easily dismissed, as I just did above. Software is not special.

plh said...

@Rcalvo: “Unfortunately for you, it is also easily dismissed, as I just did above. Software is not special.”

Hehe... did you indeed? And your easy dismissal is due to appear when and in which economics journal? It seems to me that the 'ease' with which you dismiss the economic arguments (and clearly without having even read them!) is the same 'ease' that e.g. homeopaths employ in their dismissals of the theoretical and empirical evidence confronting their particular brands of absurd belief.

The patent system is the province of economics, not quantum theory; from the fact that some subset of persons in some set have claimed 'x' it does not follow that the only claim of all persons in that set was 'x'; that the term “software invention“ is difficult to pin down does not detract from the (empirically justified) fact that the FFII amendments to the law would've been a clarifying step forward... almost every point you have made so far is either simply factually incorrect or fallacious and since posting here is extremely tedious and finnicky (I just lost a long post), if you wish to continue the discussion about patent system economics (or if David would like to help out Martin with his AGW denialism ;-) - come on over to http://badscience.net.

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