Thanks for pointing it out. Am I wrong in believing that
interpretation
is bound by the text you interpret, even if you are the highest
board of
appeals of the sacrest institution?.
Well, there is no reason why you have to agree with the Board. Feel free to disagree. They sometimes do issue incomprehensible decisions, or even decisions that are on the face quite wrong. But it's the same with the Supreme Court: if they say it's to be yes, you can disagree all you want, but at the end of the day it is still yes.
I think that is the most pragmatic (and therefore correct) way for a lawyer to think. But not for a citizen. Democracy rests on the capability of the citizens to question whether what their institutions say and do is right or not and then correcting them if it's wrong. Of course I can't correct them alone, but I can point the issue to fellow citizens and if we all agree, the system should be changed.
To paraphrase you: I can disagree with the Supreme Court all I want, but if we all disagree,at the end of the week, it will be no, and maybe someone else will sit in the Supreme Court.
What I am trying to say is that if you argue it is illegal, your opponents can easily score points by saying the BoA has said it's not illegal, and they are appointed by the EPC to make such interpretations. Just like with the Supreme Court. If you say "it's illegal" and the SC has said it's legal, the debate is much easier for those supporting legality.
I understand you can be harder to attack by saying it is undesirable, it is wrong or even it is perverse, and not saying it is illegal. But being illegal is also a point, and I think we should use it. Those institutions granting software patents are not legitimated by the stablished law, they are only legitimated by their own interpretation of the law. For me there's a big difference. Specially when their interpretation simply does not make sense.
In the Nov 7th hearing ini the European Parliament, there were two speakers from the EPO. One insisted what they did was not illegal. The other wellcome the harmonization of the law with the practice of the EPO. In my book this means the pratice of the EPO is divergent with the current law.
Speaking about legality here is part of the battle. Is claiming that you cannot allow the law to be so twisted and reinterpreted that you need high experts to understand it (or not even them), people should be able to understand issues, at least with a resonable effort, because in the end of the day it is us who are prohibited from programming. So it is important when everybody except the legal circles (and then only part of them) think something is not legal.
And it is important to note that we are not advocating a change in law, but the pro-swpat camp is. We just want the current law to be observed in a much more rational way than it is currently.
The EPO interpretation is inconsistent because it pretends the exclusion of programs "for
computer> programs as such" affect 0 computer programs, because depending on
how you write your application, any computer program can be patented (although one usually patents much more general things than computer programs, and a program is covered by several patents).
This is correct, virtually all computer programs can be covered by a patent claim if you can come up with some effect that "goes beyond the normal interaction between hardware and software". A computer program that computes
Nice phrase. In my first reading I thought it meant paranormal effects.
the value of a stock portfolio or that manages an electronic auction is an example of an unpatentable program. You may want to read
http://www.iusmentis.com/patents/businessmethods/epoexamples/EP1012764opposi...
for an example on how to attack software patents (this is an opposition my firm filed).
Queued for printing and later reading.
Correct. But keep the terminology right please. If you make mistakes with the simple stuff, the other side can point out those mistakes and argue that you don't know what you are talking about so you shouldn't be taken seriously.
I am lost here. I don't see where my terminology is wrong. Can you correct my original text?.
Lots of national courts appear to be following the EPO's BoA. The German supreme court quite recently did (in their Speech analysis program case) by deciding computer programs are patentable in Germany.
There is also the 17th senate that does not agree in that software is patentable, I believe. I've heard there are cases in one sense and another. But possibly we should come down to too much detail to find out.
RSA and the MPEG families of patents are examples of "software patents" that make a lot of money. And why would big firms with lots of lawyers and money pay large amounts of royalties ($2.50 per device for MPEG, for example) if the patents could easily be declared invalid?
That's what I meant. Even software patents that cannot be
invalidated> through prior art (but should through subject matter) are harmful.
Well, I was trying to argue that the existence of these patents show that maybe it is not as obvious as you think that software patents are invalid. If a big firm has the money, why would they not simply let loose the lawyers to get those patents invalid instead of paying royalties? For $2.50 a device with 9 million devices you can do a lot of court cases.
It depends on the case. Generally there is more than one patent you must fight. In other case big companies, with big pockets cross-license and don't pay so much, and in other case, I guess we'll never know all the possible arrangements outside courts than can be there. Possibly if you have a good enough case to invalidate it you can choose a very cheap license from the patent owner who does not want his patent invalidated or a much more expensive lawsuit.
Most software patents, though are not such a cash cow.
Hi,
xdrudis@tinet.org wrote:
Well, there is no reason why you have to agree with the Board. Feel free to disagree. They sometimes do issue incomprehensible decisions, or even decisions that are on the face quite wrong. But it's the same with the Supreme Court: if they say it's to be yes, you can disagree all you want, but at the end of the day it is still yes.
I think that is the most pragmatic (and therefore correct) way for a lawyer to think. But not for a citizen. Democracy rests on the capability of the citizens to question whether what their institutions say and do is right or not and then correcting them if it's wrong.
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
To paraphrase you: I can disagree with the Supreme Court all I want, but if we all disagree,at the end of the week, it will be no, and maybe someone else will sit in the Supreme Court.
You should go to the legislature to get a bad law changed. A court can only uphold the law, and it is wrong for a court to go against the law even if the law is wrong.
I understand you can be harder to attack by saying it is undesirable, it is wrong or even it is perverse, and not saying it is illegal. But being illegal is also a point, and I think we should use it.
Well, from my point of view the interpretation of the BoA is not an illegal one. It is very peculiar and seems to fly in the face of the EPC, but they *can* do that.
Those institutions granting software patents are not legitimated by the stablished law, they are only legitimated by their own interpretation of the law. For me there's a big difference. Specially when their interpretation simply does not make sense.
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
In the Nov 7th hearing ini the European Parliament, there were two speakers from the EPO. One insisted what they did was not illegal. The other wellcome the harmonization of the law with the practice of the EPO. In my book this means the pratice of the EPO is divergent with the current law.
I can very well understand their position though. They think the BoA is doing something consistent with the EPC, and they want harmonization on the basis of their current practice. The end result would be that the IBM decisions become EU law. This may be undesirable to you, but it doesn't seem inconsistent?
Speaking about legality here is part of the battle. Is claiming that you cannot allow the law to be so twisted and reinterpreted that you need high experts to understand it (or not even them), people should be able to understand issues, at least with a resonable effort, because in the end of the day it is us who are prohibited from programming. So it is important when everybody except the legal circles (and then only part of them) think something is not legal.
This is a very good point. Unfortunately it can also be used to argue that 52(2) and (3) should be taken out of the EPC, since they're a dead letter. Today's information society requires broad protection, even for computer-implemented inventions, and then there's no place for antique views on patentability. Then the programmers will also understand what the possibilities are.
And it is important to note that we are not advocating a change in law, but the pro-swpat camp is. We just want the current law to be observed in a much more rational way than it is currently.
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
http://www.iusmentis.com/patents/businessmethods/epoexamples/EP1012764opposi...
for an example on how to attack software patents (this is an opposition my firm filed).
Queued for printing and later reading.
I welcome your opinion.
Correct. But keep the terminology right please. If you make mistakes with the simple stuff, the other side can point out those mistakes and argue that you don't know what you are talking about so you shouldn't be taken seriously.
I am lost here. I don't see where my terminology is wrong. Can you correct my original text?.
You wrote in your earlier mail:
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned since 1973 and those issuing from the mid-1980s being of dubiious enforceability."
There is no EU patent law right now, and I thought that in this sentence you suggested there was. Maybe you should make the distinction more clear. The interpretation of the law as devised by the BoA of the EPO is now being forced upon the EU member states, even though the BoA is no law-making institute. Furthermore, not all EU member states are EPC contracting states. How's that for democracy?
Ehm, so you were not wrong is what I wanted to say. :) It's just a very common mistake to make. So please take the above quote from me as a tip, not a correction. :-)
Lots of national courts appear to be following the EPO's BoA. The German supreme court quite recently did (in their Speech analysis program case) by deciding computer programs are patentable in Germany.
There is also the 17th senate that does not agree in that software is patentable, I believe. I've heard there are cases in one sense and another. But possibly we should come down to too much detail to find out.
Can you please tell me what the 17th senate is? I was at an EPO conference a few weeks ago, and a member of the German patent office presented to us the German case law. From this I got the impression the general view in Germany is what the BGH said.
Well, I was trying to argue that the existence of these patents show that maybe it is not as obvious as you think that software patents are invalid. If a big firm has the money, why would they not simply let loose the lawyers to get those patents invalid instead of paying royalties? For $2.50 a device with 9 million devices you can do a lot of court cases.
It depends on the case. Generally there is more than one patent you must fight. In other case big companies, with big pockets cross-license and don't pay so much, and in other case, I guess we'll never know all the possible arrangements outside courts than can be there. Possibly if you have a good enough case to invalidate it you can choose a very cheap license from the patent owner who does not want his patent invalidated or a much more expensive lawsuit.
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares. But that only works for really clear-cut cases, like when you have a publication describing all of the invention. If it is debatable, you don't want to end up in court since you may lose.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
Most software patents, though are not such a cash cow.
Most patents in general are not cash cows.
Kind regards,
Arnoud Engelfriet
El Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet deia:
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
Saying an exclusion clause excludes nothing is against the letter of the law, I'd say. It is ignoring what is written, not infering or failingto infer anything fancy.
To paraphrase you: I can disagree with the Supreme Court all I want, but if we all disagree,at the end of the week, it will be no, and maybe someone else will sit in the Supreme Court.
You should go to the legislature to get a bad law changed. A court can only uphold the law, and it is wrong for a court to go against the law even if the law is wrong.
I didn't explain it right or something. I meant you can also go to the legislature to have wrong judges changed. This stems from my idea that the law is not wrong (though it could be better maybe) and the EPO interpretation is absurd.
Well, from my point of view the interpretation of the BoA is not an illegal one. It is very peculiar and seems to fly in the face of the EPC, but they *can* do that.
Again, it ignores what is written.
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
I think there are jurists also who call it illegal, but I'd have to dig for the references and I don't have time right now.
In the Nov 7th hearing ini the European Parliament, there were two speakers from the EPO. One insisted what they did was not illegal. The other wellcome the harmonization of the law with the practice of the EPO. In my book this means the pratice of the EPO is divergent with the current law.
I can very well understand their position though. They think the BoA is doing something consistent with the EPC, and they want harmonization on the basis of their current practice. The end result would be that the IBM decisions become EU law. This may be undesirable to you, but it doesn't seem inconsistent?
Sorry, harmonization of law on the basis of their practice means their practice does not follow the law. Am I being thick?. Saying something that implies they don't follow the law, and saying their acting legaly is inconsistent.
This is a very good point. Unfortunately it can also be used to argue that 52(2) and (3) should be taken out of the EPC, since they're a dead letter. Today's information society requires broad protection, even for computer-implemented inventions, and then there's no place for antique views on patentability. Then the programmers will also understand what the possibilities are.
Well, that would be a bad outcome, but it _would_ be more consistent. If they want to push that, though, they'll have to be much less under cover and justify that protection is really needed and the affected people wants it. They'll have a much harder fight. I see no politician buying that. Even the most pro-swpat people claim they don't want to patent all software like in the USA. They'd have a hard time claiming that while deleting "computer programs" from EPC 52.2
And it is important to note that we are not advocating a change in law, but the pro-swpat camp is. We just want the current law to be observed in a much more rational way than it is currently.
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
They want to keep the practice, I want to keep the law. You cannot understand that, of course, if you think their practice is legal. But I don't think the Technical Board of Appeals is entitled to go agaisnt the letter of the EPC who created the TBA itself. Btw, I think there's an Enlarged Board of Appeals that should have been used and hasn't. But again, no time now to dig for refrences, remind me later.
You wrote in your earlier mail:
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned since 1973 and those issuing from the mid-1980s being of dubiious enforceability."
There is no EU patent law right now, and I thought that in this sentence you suggested there was. Maybe you should make
No, there will be in 2003 if we don't stop it.
the distinction more clear. The interpretation of the law as devised by the BoA of the EPO is now being forced upon the EU member states, even though the BoA is no law-making institute. Furthermore, not all EU member states are EPC contracting states. How's that for democracy?
Which EU member state is not in the EPC ? I thought they were the 15 EU members + 9 or 10
Ehm, so you were not wrong is what I wanted to say. :) It's just a very common mistake to make. So please take the above quote from me as a tip, not a correction. :-)
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned by the EPC since 1973 and those issuing from the mid-1980s from the EPO being of dubiious enforceability."
Is it now more clear?.
Lots of national courts appear to be following the EPO's BoA. The German supreme court quite recently did (in their Speech analysis program case) by deciding computer programs are patentable in Germany.
There is also the 17th senate that does not agree in that software is patentable, I believe. I've heard there are cases in one sense and another. But possibly we should come down to too much detail to find out.
Can you please tell me what the 17th senate is? I was at an EPO conference a few weeks ago, and a member of the German patent office presented to us the German case law. From this I got the impression the general view in Germany is what the BGH said.
I need to find references. I think it is called BGH17 in German, but I don't speak German. Sorry. There is also an interesting case in Poland, I think, though Poland is not yet in the EU (nor the EPC, I think).
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares. But that only works for really clear-cut cases, like when you have a publication describing all of the invention. If it is debatable, you don't want to end up in court since you may lose.
And the EPO interpretation of EPC 52.2 is possibly debatable according to you?. In fact the opposition you sent us (I'll still have to read it...) is much cheaper than one of these lawsuits, and less risky that the case when you are being threatened. Although it is expensive for a non threatened organisation to do, except big players watching competitors stepping on their toes. I think you can only oppose in the first 9 months after the patent issues, though, so it is not a general solution when you're under threat since they won't attack you until after 9 months. Is it so?.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
That's hardware companies living on software, who think that, not software companies.
The solution is possibly that none of those gadgets should be patentable, because implemented in bits or silicon, their contribution is mere logic, not in a field of technology. You should not ask "Is there something new here? Is this hardware or software?" But, "what is new in here teaches us something on repeatabe use of controllable forces of nature ", software, firmware or logical circuit design (VHDL) teaches us nothing of this kind, is only applying available knowledge to a problem. Some other hardware achievements do teach us something and should possibly be patentable. That includes for instance a new transistor, or even some pattern or material to lay out circuits so that they dissipate less heat when it wasn't previously known that effect or in general thing that need laboratories and experimentation.
This should be consistent with the EPC since it is rougly the approach of the 1978 EPO guidelines based on the same EPC (at least art 52 is unchanged, IIRC)
On Tue, Dec 10, 2002 at 08:06:09AM +0100, Xavi Drudis Ferran wrote:
There is also the 17th senate that does not agree in that software is patentable, I believe. I've heard there are cases in one sense and another. But possibly we should come down to too much detail to find out.
Can you please tell me what the 17th senate is? I was at an EPO conference a few weeks ago, and a member of the German patent office presented to us the German case law. From this I got the impression the general view in Germany is what the BGH said.
I need to find references. I think it is called BGH17 in German, but I don't speak German. Sorry. There is also an interesting case in Poland, I think, though Poland is not yet in the EU (nor the EPC, I think).
It's probably the PatG/17. The PatG/21 is responsible for electronics and is more pro-software patents (and by being cleverm, they get a lot of software related cases to the PatG/21 to push them through, instead of the PatG/17 which is really responsible for Software and would deny the patent).
In the case of IBM's error correction case, the PatG/17 did reject the patent because it was software (they rejected the idea of a distinction between "software as such" and any other form of software), the BGH/10 nullified this decision and had it revised (one main argument being that the software could be potentially have a "technical effect"), and in the revision the PatG/17 rejected it again (because it wasmore likely the errors being corrected were human errors rather than machine errors)[1]. IIRC, I am only studying the happenings at that level of detail since yesterday.
Thanks, Marcus
[1] Apparently they weren't thinking of scanners and OCR. My girl friend in fact developed a similar algorithm in an OCR project at the university around the time the courts made their decisions, without knowing of IBMs patent. It's grotesk that the patent was not outright rejected by common sense at all levels of the system. Apparently the algorithm was obvious to an undergraduated student, not even to talk about the experts skilled in the art.
Xavi Drudis Ferran wrote:
El Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet deia:
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
Saying an exclusion clause excludes nothing is against the letter of the law, I'd say. It is ignoring what is written, not infering or failingto infer anything fancy.
Well, it excludes those computer programs that are not capable of causing a further technical effect. For example, a computer program implementing a business method is not patentable. Recently this was confirmed in a Board of Appeals case T641/00.
I can very well understand their position though. They think the BoA is doing something consistent with the EPC, and they want harmonization on the basis of their current practice. The end result would be that the IBM decisions become EU law. This may be undesirable to you, but it doesn't seem inconsistent?
Sorry, harmonization of law on the basis of their practice means their practice does not follow the law. Am I being thick?. Saying something that implies they don't follow the law, and saying their acting legaly is inconsistent.
Sorry, I do not understand you here. The EC is trying to harmonize EU law. They are doing this on the basis of the European Patent Convention, which is a treaty entirely separate from the EU. They could also have said "we're going to harmonize EU law based on US patent law", for example.
This is a very good point. Unfortunately it can also be used to argue that 52(2) and (3) should be taken out of the EPC, since they're a dead letter. Today's information society requires broad protection, even for computer-implemented inventions, and then there's no place for antique views on patentability. Then the programmers will also understand what the possibilities are.
Well, that would be a bad outcome, but it _would_ be more consistent. If they want to push that, though, they'll have to be much less under cover and justify that protection is really needed and the affected people wants it. They'll have a much harder fight. I see no politician buying that. Even the most pro-swpat people claim they don't want to patent all software like in the USA. They'd have a hard time claiming that while deleting "computer programs" from EPC 52.2
Well, as far as I understand it, everybody seems to be in agreement that inventions should have technical character. The differences occur over the definition of when something is technical. Nobody wants purely non-technical software to be the subject of patents.
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
They want to keep the practice, I want to keep the law.
You seem to think that your interpretation of the law is the only one possible. This seems a bit unfair. Don't you think it is possible that others have a different interpretation of the law?
You cannot understand that, of course, if you think their practice is legal. But I don't think the Technical Board of Appeals is entitled to go agaisnt the letter of the EPC who created the TBA itself. Btw, I think there's an Enlarged Board of Appeals that should have been used and hasn't. But again, no time now to dig for refrences, remind me later.
The Board of Appeals is entitled to provide an interpretation of the EPC. What you seem to say is that their interpretation of the EPC violates the EPC's original intent. This may be so, but since they are the final arbiter, it is hard to point out what they are doing wrong.
the distinction more clear. The interpretation of the law as devised by the BoA of the EPO is now being forced upon the EU member states, even though the BoA is no law-making institute. Furthermore, not all EU member states are EPC contracting states. How's that for democracy?
Which EU member state is not in the EPC ? I thought they were the 15 EU members + 9 or 10
You're right. I was thinking the other way around.
EPC member states are Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, the Netherlands, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey and the United Kingdom.
EU member states are Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden, United Kingdom
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned by the EPC since 1973 and those issuing from the mid-1980s from the EPO being of dubiious enforceability."
Is it now more clear?.
Well, if you insist on your interpretation of the EPC, yes.
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares. But that only works for really clear-cut cases, like when you have a publication describing all of the invention. If it is debatable, you don't want to end up in court since you may lose.
And the EPO interpretation of EPC 52.2 is possibly debatable according to you?
Sure. Personally I have always felt that the only rational way to interpret this provision is that it excludes patents on the computer programs themselves, but not on for example a machine programmed with a particular piece of software. If the behavior exhibited by the machine is patentable, then it should not make a difference whether the behavior is caused by hardware or software. But making and selling of the program separate from the machine should not be patentable, just like making and selling a blueprint for the machine should not be covered by patents.
. In fact the opposition you sent us (I'll still have to read it...) is much cheaper than one of these lawsuits, and less risky that the case when you are being threatened.
The big risk is that the patent owner will now start looking for infringing products manufactured by us. After all, why would we attack his patent if it meant nothing to us?
Although it is expensive for a non threatened organisation to do, except big players watching competitors stepping on their toes.
The opposition fee is not that much (EUR600, I believe). The big costs are the costs needed for the patent attorney and the amount of work you have to invest in a very short period of the time. And you really need a European patent attorney to properly file an opposition, since the law is very complex and it is very easy to shoot down an opposition by a layperson purely on procedural grounds.
I think you can only oppose in the first 9 months after the patent issues, though, so it is not a general solution when you're under threat since they won't attack you until after 9 months. Is it so?.
This is correct. That's why you should monitor newly issued patents in fields in which you are active, so that you can decide whether to oppose them or not.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
That's hardware companies living on software, who think that, not software companies.
I'm speaking from the point of view of a hardware company who is using a lot of software.
The solution is possibly that none of those gadgets should be patentable, because implemented in bits or silicon, their contribution is mere logic, not in a field of technology. You should not ask "Is there something new here? Is this hardware or software?"
Absolutely! It makes no difference at all.
But, "what is new in here teaches us something on repeatabe use of controllable forces of nature ", software, firmware or logical circuit design (VHDL) teaches us nothing of this kind, is only applying available knowledge to a problem.
I disagree. But I don't think we can settle this different point of view here and now.
This should be consistent with the EPC since it is rougly the approach of the 1978 EPO guidelines based on the same EPC (at least art 52 is unchanged, IIRC)
The EPO Guidelines are binding to no one except examiners. The president can issue new Guidelines whenever he feels like it. I don't think this is a very strong argument.
Kind regards,
Arnoud Engelfriet
HI all, sorry for commenting only now, but I have only now time to read this interesting thread.
I will gather some claims form mister Arnoud, that made me think.
On Wed, 2002-12-11 at 13:06, Arnoud Galactus Engelfriet wrote: I don't know that. Manipulating EM signals seems like using forces
of nature in a controllable manner.
Yes you get the right point, "seem" is exactly the right word here, and what most patent attorneys do is exactly that, they make wording such that something "seem" something else.
The problem is that with the MPEG (or any other) signal compression system you do NOT manipulate EM signals, you manipulate digital information on you computer and than build a resulting signal. The signal fed into an DAC and convected to a membrane or a monitor will result into a manipulation of forces. Note that "the signal" is not something you can patent!
And this kind of manipulation is really well known.
On Wed, 2002-12-11 at 13:06, Arnoud Galactus Engelfriet wrote:
You're citing overturned law. This view on patentability has been abandoned by the German Supreme Court.
This is another big problem with legal people (I'm not referring to you), they think they are the only one entitled to play with the law, and that's wrong. If any Court following the letter of the law start to rule against the spirit of the law, then there's a problem. It means lawyers have found a way to circumvent the law, and politics must come in place and correct this behavior. Correct the behavior does not mean that the law must follow common practice, the law must be modified to follow the spirit of the previous one by fixing the holes that make it possible to circumvent the law.
What you are saying instead is that the law must be modified to make the holes the rule, that's a very dangerous way to think, and, unfortunately, it's getting more and more common today.
Of course if the general feeling is that the spirit of the law is wrong than the law have to be changed completely.
Are you saying the spirit of the law is wrong? I think not! I think past law makers had been very wise and predicted that economical interest would have tried to erode common sense for the sake of profit, only they didn't had technical meanings to write a good law because software were not so common and was not well known.
On Wed, 2002-12-11 at 13:22, Arnoud Galactus Engelfriet wrote:
Encouraging competition and stimulate rip-offs, yes. If a patent cannot protect you against differing implementations of your invention, it is of little use.
You are saying that the steam engine patent should cover the diesel motor. You are not fair, you try to fool us in false arguments but you intents are clear here, you want to simply patent ideas and that's clear in the following statement.
Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
Idea! Here you finally come to your real intents, you want to twist the patent system to patent ideas! And that is exactly what we oppose. Patenting ideas as such is absurd to me, and dangerous for a civilization. Saying an idea has a father is right, saying an idea has an owner is very very wrong.
Patent should be made to promote innovation for the growth of the society, not to foster control of few individuals over others, or to promote the grow of individual companies. We are in a capitalistic economy, companies must compete, it is just wrong to extend the field of patentability to fields where promoting innovation for the growth of society is not needed, and is the negation of a capitalistic economy, as patents are monopolies the worst enemies of a capitalistic economy based on democracy.
On Wed, 2002-12-11 at 13:32, Arnoud Galactus Engelfriet wrote:
The fact that the German Federal Court of Justice has explicitly abandoned this interpretation in more recent decisions shows that the subject is still open for debate. Is it not possible for people, even Supreme Court justices, to change their views on what is patentable?
Of course it is possible as it was possible (and right for me) to change idea on slavery, it is also possible to change idea and be convinced that democracy is not good and dispotism is more efficient (or any other excuse), what I want to say is that changing mind is not wrong per se, the problem is not in changing idea, it is in twisting the law to accomodate your ideas. You should change the law or respect it's spirit.
The problem is: are these new views in line with the view of the most? NO, because most people does not even know exactly what patents are, asking them to understand software patents in this situation is just absurd, and that include politicians like the ones currently make decisions in the EU parliament.
Are people informed correctly so that they can make a decision? NO, they are not informed, they are under a mis-information campaign of powerful pro-swpat companies, to the detriment of the society for the sake of profit of the big bullies.
So while _industrial_ patents seem to be a viable thing for our society, software patents (or patents on ideas as that they are), are not. Not saying that a 20 (twenty) years of monopoly over an idea in software can lead to any result except promotion of innovation.
TRIPS demands patents in all fields of technology. Excluding
software-based implementations from patent protection violates TRIPS.
TRIPS has already made damages to our societies in the form of the DMCA and the coming EUCD, we should simply drop them in my opinion. They are a way for powerful companies to twist other states local laws for their own interest and has nothing to do with harmonization. Companies likes "unharmonized" laws as well when they make them easier to make profits (like bank secrecy in Switzerland). Any non hypocritical person will recognize that harmonizing local law to a treaty made by a non-elective organization is not democratic and should be heartedly rejected by people (if they only were informed ...)
This question is impossible to answer, since we haven't defined what a technical effect is. I can quote you patents with potential software embodiments that achieve effects such as a faster working of the machine, a higher accuracy of fuel usage in a car engine, a better measuring of data, reduced storage capacity for a signal to be recorded and so on. Are such effects "technical"? In my opinion yes, but what about you?
Should we patent a therapeutic practice because it makes people healthy and have the technical effect of lessening medical costs of older practices? Besides examples, can you explain why you use the term "technical effect"? What is it exactly opposed to? And why if something has a technical effect then it is patentable on your opinion?
On Fri, 2002-12-13 at 14:43, Arnoud Galactus Engelfriet wrote:
Xavi Drudis Ferran wrote:
El Wed, Dec 11, 2002 at 01:06:56PM +0100, Arnoud Galactus Engelfriet deia:
I don't know that. Manipulating EM signals seems like using forces of nature in a controllable manner.
It depends. If the manipulation is ADC + multiplying by two in an FPU + DAC, I say it isn't, we already know how to build circuits for that, and we know what happens to a signal multiplied by two.
But surely I am still using forces of nature in a controllable manner, even if my use is entirely known???
Why a patent on *nothing* new or inventive should be granted? What's the gain for the society? Even my arm punching Xavi's nose use forces of nature in a controllable manner, should I patent nose punching by arm?
If you discover a new quartz crystal that will changed phase of
signal by 10% then it's probably patentable.
Ok, but if I program a DSP chip to realize the same phase change it is not patentable? Why? What is the difference in effect produced by these two things?
Why the effect should make any difference?
The problem is, do we have something new with your use of the software? No, it's all known art, you only made it because at some point you needed it not because you invented something new. You took pieces of known knowledge and put them together to make the thing you needed. And if you needed it you can see that you already had incentives to make such thing, why patents should cover you?
regards, Simo.
Simo Sorce wrote:
I will gather some claims form mister Arnoud, that made me think.
I'm pleased to see you took the time to read all my messages. However, I find it a bit difficult to respond to this collection, because I'm not sure anymore in which context I said what.
On Wed, 2002-12-11 at 13:06, Arnoud Galactus Engelfriet wrote: I don't know that. Manipulating EM signals seems like using forces
of nature in a controllable manner.
Yes you get the right point, "seem" is exactly the right word here, and what most patent attorneys do is exactly that, they make wording such that something "seem" something else.
Or maybe I think it *is* something else, and you disagree with me.
The problem is that with the MPEG (or any other) signal compression system you do NOT manipulate EM signals, you manipulate digital information on you computer and than build a resulting signal.
Well, I think you *do* manipulate EM signals. You just digitize them before applying transformations. They're still the EM signal.
The signal fed into an DAC and convected to a membrane or a monitor will result into a manipulation of forces.
But making an analog signal digital, processing it, and then feeding it to the DAC and causing a picture to be displayed is not?
Note that "the signal" is not something you can patent!
Correct.
On Wed, 2002-12-11 at 13:06, Arnoud Galactus Engelfriet wrote:
You're citing overturned law. This view on patentability has been abandoned by the German Supreme Court.
This is another big problem with legal people (I'm not referring to you), they think they are the only one entitled to play with the law, and that's wrong.
That's absolutely right. I'm just saying here that this decision has no legal status, so you cannot say "decided by the Supreme Court, so end of discussion" like you could with binding precedents.
What you are saying instead is that the law must be modified to make the holes the rule, that's a very dangerous way to think, and, unfortunately, it's getting more and more common today.
Well, maybe I happen to think that the "holes" are what the law should be.
Are you saying the spirit of the law is wrong? I think not! I think past
Actually I think I am saying that :) Feel free to disagree though.
law makers had been very wise and predicted that economical interest would have tried to erode common sense for the sake of profit, only they didn't had technical meanings to write a good law because software were not so common and was not well known.
I do not get this impression from reading the minutes of the drafters of the EPC. They agree that an invention should represent technical progress, but also that a patentee should get adequate protection.
On Wed, 2002-12-11 at 13:22, Arnoud Galactus Engelfriet wrote:
Encouraging competition and stimulate rip-offs, yes. If a patent cannot protect you against differing implementations of your invention, it is of little use.
You are saying that the steam engine patent should cover the diesel motor.
Do they operate according to the same inventive idea? Then yes.
You are not fair, you try to fool us in false arguments but you intents are clear here, you want to simply patent ideas and that's clear in the following statement.
Of course. That's the *point* of patents. They protect technical ideas. Not *all* ideas, just technical ideas, which can be put to practice.
Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
Idea! Here you finally come to your real intents, you want to twist the patent system to patent ideas! And that is exactly what we oppose.
Fine with me. But don't make it sound like I'm a monster plotting to take over the world. One patents inventive concepts. The "how to build it"s are the embodiments, but the patent protects against variations of the embodiments by giving you an exclusive right on the general idea.
Should we patent a therapeutic practice because it makes people healthy and have the technical effect of lessening medical costs of older practices?
No, because I think the costs to society (not being able to save lives because a patent holder refuses a license to a doctor) outweigh the benefits (disclose of the new practice).
Besides examples, can you explain why you use the term "technical effect"?
Because I think that's the proper criterion. If it does something in a field of technology, then that's a sign it may be patentable (if novel, inventive & industrially applicable).
What is it exactly opposed to? And why if something has a technical effect then it is patentable on your opinion?
I believe patents should cover all technical progress, not just "new teachings on the controlled use of natural forces". If it does something novel and inventive in a field of technology, it deserves a patent.
But surely I am still using forces of nature in a controllable manner, even if my use is entirely known???
Why a patent on *nothing* new or inventive should be granted? What's the gain for the society?
I am not saying "oh, it's technical, let's grant a patent". You still have to evaluate novelty, inventive step and industrial applicability. I'm saying "oh, it's technical, now let's see whether it deserves a patent" and "oh, it's not technical, go away or I'll taunt you a second time."
Even my arm punching Xavi's nose use forces of nature in a controllable manner, should I patent nose punching by arm?
I don't know, I don't like this criterion. I would say you achieve no technical effect with this claim, so I would tell you to go away or I will taunt you a second time. :)
Ok, but if I program a DSP chip to realize the same phase change it is not patentable? Why? What is the difference in effect produced by these two things?
Why the effect should make any difference?
Because the effect is what shows the difference.
The problem is, do we have something new with your use of the software? No, it's all known art, you only made it because at some point you needed it not because you invented something new.
I don't understand. Necessity is the mother of invention. This cannot be the proper criterion, as this argument applies to any invention in any field. "You only made it because you needed it".
You took pieces of known knowledge and put them together to make the thing you needed. And if you needed it you can see that you already had incentives to make such thing, why patents should cover you?
If there were incentives in the prior art, my invention is obvious. But if I combine pieces of known technology to make something novel and *non* obvious, then I deserve a patent. The lightbulb consisted of known pieces, yet it was a patentable invention.
Kind regards,
Arnoud
On Mon, 2002-12-16 at 18:16, Arnoud Galactus Engelfriet wrote:
Simo Sorce wrote:
Yes you get the right point, "seem" is exactly the right word here, and what most patent attorneys do is exactly that, they make wording such that something "seem" something else.
Or maybe I think it *is* something else, and you disagree with me.
Maybe.
The problem is that with the MPEG (or any other) signal compression system you do NOT manipulate EM signals, you manipulate digital information on you computer and than build a resulting signal.
Well, I think you *do* manipulate EM signals. You just digitize them before applying transformations. They're still the EM signal.
Oh my ..., of course not. Once the signal is digitalized it is simply a sequence of numbers that can get manipulated in any way you want. They are the representation of EM signals, not at all EM signals. Matter is one thing, representation of matter in software another.
The signal fed into an DAC and convected to a membrane or a monitor will result into a manipulation of forces.
But making an analog signal digital, processing it, and then feeding it to the DAC and causing a picture to be displayed is not?
Of course not, you have a signal in input and a signal on putput, you have numbers in the middle. We are there to ""make"" the law, I do not mind what S
What you are saying instead is that the law must be modified to make the holes the rule, that's a very dangerous way to think, and, unfortunately, it's getting more and more common today.
Well, maybe I happen to think that the "holes" are what the law should be.
You are entitled to have a different opinion, but then as I said you need to ask a change in the spirit of the law and make it CLEAR to all, so that all can judge your idee and accept/reject it. Not try to pass a law that seem something but leave you greater holes to use for your own interest (against interest of the society).
Are you saying the spirit of the law is wrong? I think not! I think past
Actually I think I am saying that :) Feel free to disagree though.
Of course I disagree and I think you have not thought what the consequences of your proposal are.
You are saying that the steam engine patent should cover the diesel motor.
Do they operate according to the same inventive idea? Then yes.
A patent is grant on methods to implement things not on ideas ... Patenting Ideas is just a bad idea.
You are not fair, you try to fool us in false arguments but you intents are clear here, you want to simply patent ideas and that's clear in the following statement.
Of course. That's the *point* of patents. They protect technical ideas. Not *all* ideas, just technical ideas, which can be put to practice.
No, it is here to patent the way you get to a solution not an idea.
Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
Idea! Here you finally come to your real intents, you want to twist the patent system to patent ideas! And that is exactly what we oppose.
Fine with me. But don't make it sound like I'm a monster plotting to take over the world.
Not take over ... take down :)
One patents inventive concepts.
Seem you're well entrenched into the idea that patenting ideas should be allowed ... but have you thought what the consequence of letting people patent ideas would be?
You are going to build a society where only few big companies are entitle to build things and all others are at the mercy of them or live in a third world way.
Especially if you let them patent any little improvement. Nobody except the patent holder of an idea will be interested in extending an idea cause the big player will simply make you not able to use it.
The "how to build it"s are the embodiments, but the patent protects against variations of the embodiments by giving you an exclusive right on the general idea.
Sorry but this is crazy ... why should you get a patent on a general idea? How do you foster innovation if you definitively block any form of innovation in a field for 20 years? By patenting the general idea you make it simply impossible to make anything with it for a long period. And you give a 20 years advantage on the patent holder for any other idea based on that basic one. So effectively you are granting a perpetual monopoly on an (possible) entire field of technology, because even if 20 years later that idea becomes free it will be obsolete in practice and superceeded by new ones on which only the first patent holder wes entitled (but most important had an economical interest) into developing it.
Should we patent a therapeutic practice because it makes people healthy and have the technical effect of lessening medical costs of older practices?
No, because I think the costs to society (not being able to save lives because a patent holder refuses a license to a doctor) outweigh the benefits (disclose of the new practice).
The same is for software patents, the cost for society are too high and outweigh benefits, extending patents to general ideas simply means you stop development and put your hands into few powerful pioneers.
I believe patents should cover all technical progress, not just "new teachings on the controlled use of natural forces". If it does something novel and inventive in a field of technology, it deserves a patent.
In this way you would have put a patent also on writing ... see not a pen or a typewriter, but on writing. It was of course an invention, and was novel ...
Even my arm punching Xavi's nose use forces of nature in a controllable manner, should I patent nose punching by arm?
I don't know, I don't like this criterion. I would say you achieve no technical effect with this claim, so I would tell you to go away or I will taunt you a second time. :)
Hey we cannot write in law that this is a thing you do not like ...
Ok, but if I program a DSP chip to realize the same phase change it is not patentable? Why? What is the difference in effect produced by these two things?
Why the effect should make any difference?
Because the effect is what shows the difference.
Oh god ... you are just saying: "let's ban progress".
Of course we can use a 1970 computer to do computations ... the effect is the same you ask a modern computer; to do 4 + 4 and get 8 as the answer ... except it now takes a lot less to make the same calculation and, most important, the research to make it faster and easier made it possible to invent a lot of other things. If you granted a patent on the microprocessor "idea" we would probably still be in the 1980 as we would have loss nearly 20 years of development on "different implementations" of gates, transistors and finally microchips" as the monopolist would have been able to block any indipendent development and would have never been pushed to make the astounding fast development we see now with the competition beetwen CPU makers
The problem is, do we have something new with your use of the software? No, it's all known art, you only made it because at some point you needed it not because you invented something new.
I don't understand. Necessity is the mother of invention.
Of course.
This cannot be the proper criterion, as this argument applies to any invention in any field. "You only made it because you needed it".
You got me wrong, I said you cannot get a patent on something just because you combined well known pieces of software on the same hardware and made no progress in controlling natural forces.
You took pieces of known knowledge and put them together to make the thing you needed. And if you needed it you can see that you already had incentives to make such thing, why patents should cover you?
If there were incentives in the prior art, my invention is obvious. But if I combine pieces of known technology to make something novel and *non* obvious, then I deserve a patent. The lightbulb consisted of known pieces, yet it was a patentable invention.
Not exactly, developing the light bulb consisted in making it possible to control how light wes emitted by material. It was a great advance in the control of natural forces.
regards, Simo.
On 9 Dec 2002 at 20:49, Arnoud Galactus Engelfriet wrote:
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
For some reason, the legal profession has always eschewed integration of ethics, quite probably because half their work in side-stepping the intent of laws would evaporate. However, in my opinion all law should be subject not to its letter, but to its spirit and if we could change that, the world would be a much better place for it.
You should go to the legislature to get a bad law changed. A court can only uphold the law, and it is wrong for a court to go against the law even if the law is wrong.
Under continental law yes. Under English law, magna carta although almost gone still theoretically permits a jury to find not guilty if they a think a law morally or ethically wrong.
"Early in 2003, Software Patents are likely to become enforced within the EU, despite being banned since 1973 and those issuing from the mid-1980s being of dubiious enforceability."
There is no EU patent law right now, and I thought that in this sentence you suggested there was. Maybe you should make the distinction more clear. The interpretation of the law as devised by the BoA of the EPO is now being forced upon the EU member states, even though the BoA is no law-making institute. Furthermore, not all EU member states are EPC contracting states. How's that for democracy?
Ehm, so you were not wrong is what I wanted to say. :) It's just a very common mistake to make. So please take the above quote from me as a tip, not a correction. :-)
Regarding this, I've changed the opening paragraph in my article to read:
Early in 2003, Software Patents are likely to become enforced within the EU, despite computer software being specifically exempted since 1973 and repeated revisions of the guidelines since reinforcing this notion - unfortunately, the proposed reforms will introduce legal loopholes big enough to permit effective work-arounds.
How's this? Is it accurate?
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
I still don't understand why there ever was a concept of "MPEG patent". Sure, a "MPEG implementation patent" but not of MPEG itself - which, as I've discussed in here at length, is a set of algorithms and therefore should be totally free in order to encourage competition to produce the best implementation.
I appreciate all that EuroLinux and the FFII have done, but could it not be argued a better approach is to say why the hell was this stupidity with hardware allowed in the first place? I can't see MPEG patents benefiting society at all eg; MPEG2 players for Linux and even MPEG2 players for Windows.
We're about to run into the same problems with MPEG4 now it's been charged for. It seems to me a very stupid idea which discourages interoperability and improvements in technology. In other words, it's anti-quality and anti-usefulness.
Most software patents, though are not such a cash cow.
Most patents in general are not cash cows.
Except for IBM, the pharmaceutical companies and a few others.
Cheers, Niall
Niall Douglas wrote:
On 9 Dec 2002 at 20:49, Arnoud Galactus Engelfriet wrote:
You are correct. But I think it is wrong to say the EPO is acting illegally, since they are within the boundaries of the EPC to do what they do. Acting against the spirit of a treaty is not illegal.
For some reason, the legal profession has always eschewed integration of ethics, quite probably because half their work in side-stepping the intent of laws would evaporate. However, in my opinion all law should be subject not to its letter, but to its spirit and if we could change that, the world would be a much better place for it.
Fine with me. But again, currently it is not illegal to do something that apparently violates the spirit of a law if you stay within the letter of the law. If you want to call violating the spirit of a law an illegal act, go ahead, but you will create much confusion because the legal people and politicians you're trying to reach will be looking for violations of the letter of the law.
Regarding this, I've changed the opening paragraph in my article to read:
Early in 2003, Software Patents are likely to become enforced within the EU, despite computer software being specifically exempted since 1973 and repeated revisions of the guidelines since reinforcing this notion - unfortunately, the proposed reforms will introduce legal loopholes big enough to permit effective work-arounds.
How's this? Is it accurate?
I would say: "despite the fact that the European Patent Convention explicitly excludes computer software as such since 1973 and the 2000 EPC Diplomatic Conference made it clear the EPC Contracting States did not want to change this. Unfortunately, the proposed Directive will effectively render this provision null and void."
The latest revision of the EPO Guidelines make it clear that according to the EPO computer software is patentable, so I don't think it's a very strong argument to say that the guidelines used to support your position. Furthermore, the Guidelines are not binding to anyone except EPO Examiners during prosecution of an application.
I get the feeling that what you are trying to say is that doing something that goes against the original intent of the EPC is necessarily an illegal activity. This seems a bit strange to me, as lawmakers have the ability to override previous laws, don't they? If the EC now wants to override the provisions of the EPC, that may be a bad policy, but it's not a loophole. It's simply a new law.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
I still don't understand why there ever was a concept of "MPEG patent". Sure, a "MPEG implementation patent" but not of MPEG itself -
To me, "MPEG patent" is shorthand for "patent on a particular technical aspect of an implementation of the MPEG standard". And no, it doesn't matter whether that implementation involves software, hardware or a combination of both.
which, as I've discussed in here at length, is a set of algorithms and therefore should be totally free in order to encourage competition to produce the best implementation.
The patents do not cover the standard itself, but only implementations of the standard. You can copy the standard as much as you want (subject to copyright restrictions of course) and distribute information in the standard to everyone. But as soon as you start implementing the standard, your implementation will infringe on some patents. And for particular implementations there might also be patents which you can work around by choosing a different implementation.
I appreciate all that EuroLinux and the FFII have done, but could it not be argued a better approach is to say why the hell was this stupidity with hardware allowed in the first place? I can't see MPEG patents benefiting society at all eg; MPEG2 players for Linux and even MPEG2 players for Windows.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
We're about to run into the same problems with MPEG4 now it's been charged for. It seems to me a very stupid idea which discourages interoperability and improvements in technology. In other words, it's anti-quality and anti-usefulness.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
Most software patents, though are not such a cash cow.
Most patents in general are not cash cows.
Except for IBM, the pharmaceutical companies and a few others.
Even to IBM most patents are not a cash cow. A small number of their patents bring in a lot of money, but most of them don't bring in any money. You may be right about pharmaceutical patents, but as most pharmaceutical firms have a much smaller number of patents than most electronics firms this seems almost inevitable.
Kind regards,
Arnoud Engelfriet
El Tue, Dec 10, 2002 at 11:49:29AM +0100, Arnoud Galactus Engelfriet deia:
I get the feeling that what you are trying to say is that doing something that goes against the original intent of the EPC is necessarily an illegal activity. This seems a bit strange to me, as lawmakers have the ability to override previous laws, don't they? If the EC now wants to override the provisions of the EPC, that may be a bad policy, but it's not a loophole. It's simply a new law.
What he tries to say is they're trying to ruin our law just because the EPO has broken it and now the Comission wants to cover the EPO with a new, bad law. Hopefully.
To me, "MPEG patent" is shorthand for "patent on a particular technical aspect of an implementation of the MPEG standard". And no, it doesn't matter whether that implementation involves software, hardware or a combination of both.
I agrre it doesn't matter, it's still a software patent impeding the creation of logical works (embodied in texts, magnetic disks, chips or a mixture of those)
The patents do not cover the standard itself, but only implementations of the standard. You can copy the standard as much as you want (subject to copyright restrictions of course) and distribute information in the standard to everyone. But as soon as you start implementing the standard, your implementation will infringe on some patents. And for particular implementations there might also be patents which you can work around by choosing a different implementation.
That's like saying the patent does not cover the invention, you can photocopy the patent description all you want. Covering any implementation of a standard means covering the standard.
But in the case of software you cannot longer distinguish the standard from its implementation. Many standards have a reference implementation, just because software is the most detailes description of itself, and a detailed standard should include software.
Therefore, patents on software prevent the dissemination of the standard. Well, I guess that depends on whether program claims are allowed, and distribution of ifnringing programs is forbidden, or they are not and "only" any use of the programs are forbidden. But anyway, publication would be useless still.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
Exactly, since hardware implementations of MPEG don't disclose new insights into the uses of forces of nature... see Dispositionsprogramm. And if they do, they might be much more general than MPEG, possibly, and nobody would so restrict the claims.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
Some other would. All economic studies show the incentives are there. And some, not surprisingly, find the same for microelectronics than for software (if they had broken the microelectronics in logical achievements and physical ones, it would have been even clearer). The strong incentive of a patent can only be justified for very expensive research invoving experiments with expensive equipment in laboratories, clinical trials, etc.
Even to IBM most patents are not a cash cow. A small number of their patents bring in a lot of money, but most of them don't bring in any money. You may be right about pharmaceutical patents, but as most pharmaceutical firms have a much smaller number of patents than most electronics firms this seems almost inevitable.
According to people from IBM, the big value is in their vast amount of patents, that allow them to cross-license and access other people inventions, so the quality of a single patent is less important.
Xavi Drudis Ferran wrote:
El Tue, Dec 10, 2002 at 11:49:29AM +0100, Arnoud Galactus Engelfriet deia:
To me, "MPEG patent" is shorthand for "patent on a particular technical aspect of an implementation of the MPEG standard". And no, it doesn't matter whether that implementation involves software, hardware or a combination of both.
I agrre it doesn't matter, it's still a software patent impeding the creation of logical works (embodied in texts, magnetic disks, chips or a mixture of those)
Ok.
The patents do not cover the standard itself, but only implementations of the standard. You can copy the standard as much as you want (subject to copyright restrictions of course) and distribute information in the standard to everyone. But as soon as you start implementing the standard, your implementation will infringe on some patents. And for particular implementations there might also be patents which you can work around by choosing a different implementation.
That's like saying the patent does not cover the invention, you can photocopy the patent description all you want. Covering any implementation of a standard means covering the standard.
Yes. But I think it is important to make a distinction between the information and machines built according to the information.
But in the case of software you cannot longer distinguish the standard from its implementation. Many standards have a reference implementation, just because software is the most detailes description of itself, and a detailed standard should include software.
Therefore, patents on software prevent the dissemination of the standard.
You can still distribute the textual description of the standard. This does lead to absurd situations, I'll give you that. Just like with the U.S. crypto laws, where you can safely export a printed version of a computer program but not the same program on a record carrier.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
Exactly, since hardware implementations of MPEG don't disclose new insights into the uses of forces of nature...
I don't know that. Manipulating EM signals seems like using forces of nature in a controllable manner.
see Dispositionsprogramm.
You're citing overturned law. This view on patentability has been abandoned by the German Supreme Court.
And if they do, they might be much more general than MPEG, possibly, and nobody would so restrict the claims.
Nobody ever restricts his claims to MPEG. You might have a patent on some signal modification technique, and if the technique in question is present in the MPEG standard, an MPEG-conformant implementation infringes on the patent. But also other implementations, and maybe even according to totally different standards can infringe.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
Some other would. All economic studies show the incentives are there.
Not if there isn't a way to recover the investments. You can do that with NDAs too, but that doesn't help public standards.
The strong incentive of a patent can only be justified for very expensive research invoving experiments with expensive equipment in laboratories, clinical trials, etc.
This is exactly what's involved when doing signal processing. You need testing, measuring, prototype chip development, more testing, experiments with human listeners/viewers and so on.
Kind regards,
Arnoud Engelfriet
El Wed, Dec 11, 2002 at 01:06:56PM +0100, Arnoud Galactus Engelfriet deia:
Yes. But I think it is important to make a distinction between the information and machines built according to the information.
Yes it is important. But you can't make that distiction with software. As long as all your novel and inventive stuff is software, the information and the machine are the same. That's why you can't patent software, because you can publicize information and monopolize it at the same time, and with software, machine = software = information.
If you have novel and inventive features in the use of forces of nature, not logical but physical, then you can patent that and I don't care if you use software or not because you won't patent software but some technical invention and the software will still be usable elsewhere, and I don't care whether you describe your technical invention with prose, verse, equations, drawings, software or a combination.
Therefore, patents on software prevent the dissemination of the standard.
You can still distribute the textual description of the standard. This does lead to absurd situations, I'll give you that. Just like with the U.S. crypto laws, where you can safely export a printed version of a computer program but not the same program on a record carrier.
Absurd indeed.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
Exactly, since hardware implementations of MPEG don't disclose new insights into the uses of forces of nature...
I don't know that. Manipulating EM signals seems like using forces of nature in a controllable manner.
It depends. If the manipulation is ADC + multiplying by two in an FPU + DAC, I say it isn't, we already know how to build circuits for that, and we know what happens to a signal multiplied by two.
If you discover a new quartz crystal that will changed phase of signal by 10% then it's probably patentable.
see Dispositionsprogramm.
You're citing overturned law. This view on patentability has been abandoned by the German Supreme Court.
That's the German Supreme Court. I cite a case that is pure common sense an a coherent interpretation of the law. I don't want to repeat my rant on lawyers vs citizes and wrong courts having to be corrected.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
Some other would. All economic studies show the incentives are there.
Not if there isn't a way to recover the investments. You can do that with NDAs too, but that doesn't help public standards.
The way to recover investment in software in being first to market, and being knowledgeable in your field. In software there are only two ways to compete: - having a monopoly - innovating In manufacturing you can compete by costs of raw materials, distribution channels, production capacity, etc.
In software the marginal costs are the same for everybody, you won't be successful with your program if it doesn't something new or does it better.
So don't tell me there's no incentive to innovate, because innovate is what programmers do for a living. Setting up patents to incentivate innovation in knowledge economy is like granting monopoly for tightening bolts in industrial economy.
If you just take a hardware business model and apply to software, little wonder it can fail, but then don't go saying you need patents to solve your mess (specially when patents can also bite your company).
The strong incentive of a patent can only be justified for very expensive research invoving experiments with expensive equipment in laboratories, clinical trials, etc.
This is exactly what's involved when doing signal processing. You need testing, measuring, prototype chip development, more testing, experiments with human listeners/viewers and so on.
I grant you that lossy compression is a little a borderline case, since you need insight in human perception, and may need experimentation for that. I'm no expert but I'm told that this insights in human perception are old, and the innovation lies in logical deduction from that knowledge (if so it shouldn't be patentable). Possibly I'd have to look at a specific patent to build an opinion on its patentability. But if a state of the art computer with state of the art input/output devices, can perform the function you claim, with jsut a new program on it, it cannot be the kind of expensive research in laboratories I was refering to.
On the other hand, you also need testing, measuring, prototype chip development for non-inventive circuit design, although much less than for inventing a new transitor. So this alone is no warranty of having a technical contribution = an invention.
Software testing or usability tests do not count as the experimentation I was refering to in order to justify a patent (but please note I don't mean the experimentation is the criteria. The experimentation is the justification for having a criteria that is the new teaching on use of forces of nature). All software is usually tested, just as you check mathematical calculations (after dividing you multiply the divisor by the result and add the remainder to check), or profread texts after writing them, and that does not render software, math or literature patentable
Xavi Drudis Ferran wrote:
El Wed, Dec 11, 2002 at 01:06:56PM +0100, Arnoud Galactus Engelfriet deia:
I don't know that. Manipulating EM signals seems like using forces of nature in a controllable manner.
It depends. If the manipulation is ADC + multiplying by two in an FPU + DAC, I say it isn't, we already know how to build circuits for that, and we know what happens to a signal multiplied by two.
But surely I am still using forces of nature in a controllable manner, even if my use is entirely known???
If you discover a new quartz crystal that will changed phase of signal by 10% then it's probably patentable.
Ok, but if I program a DSP chip to realize the same phase change it is not patentable? Why? What is the difference in effect produced by these two things?
Kind regards,
Arnoud Engelfriet
El Fri, Dec 13, 2002 at 02:43:02PM +0100, Arnoud Galactus Engelfriet deia:
But surely I am still using forces of nature in a controllable manner, even if my use is entirely known???
Known stuff does not deserve patents. I'm sorry if the current standards for novelty and inventive step are so low at the EPO that force European patent attorneys to forget this.
If you discover a new quartz crystal that will changed phase of signal by 10% then it's probably patentable.
Ok, but if I program a DSP chip to realize the same phase change it is not patentable? Why? What is the difference in effect produced by these two things?
It has already been said. Because you are not offering society any new knowledge on nature that we may want to pay for with a temp monopoly.
Maybe an analogy will help:
You can patent a car that flies 10 cm above the road and runs on water (if you can invent it at all), but you can't patent driving from Munich to the Hague, even if nobody has published it before, or even if the road is so confusing that it isn't obvious where to leave the highway.
Applying what is already known is something that will happen without incentives (unless is not practical, and then we don't want it to happen). We should be glad that we can do more things every day with what is already known, but that does not mean we need patents for these additional things.
SOmehow you seem to apply the USA criteria: It's useful, let's patent it. In Europe we need that it's an invention, and not everything is.
Would you patent cinema? literature? math? Why or why not?
Xavi Drudis Ferran wrote:
El Fri, Dec 13, 2002 at 02:43:02PM +0100, Arnoud Galactus Engelfriet deia:
But surely I am still using forces of nature in a controllable manner, even if my use is entirely known???
Known stuff does not deserve patents. I'm sorry if the current standards for novelty and inventive step are so low at the EPO that force European patent attorneys to forget this.
I'm not talking about inventive step. I'm not talking about novelty. What you said first is that things are inventions only if they use forces of nature in a controllable manner. So I take something that uses forces of nature, and now you say it is still no invention because it is already known.
Now I am confused. Can you please tell me how you would propose that a claim is evaluated for patentability? Where is the requirement for using forces of nature tested?
Maybe an analogy will help:
You can patent a car that flies 10 cm above the road and runs on water (if you can invent it at all), but you can't patent driving from Munich to the Hague, even if nobody has published it before, or even if the road is so confusing that it isn't obvious where to leave the highway.
I agree with that. But let me try to understand how you would apply these criteria.
The first one, you look at the prior art and see such a car does not exist. Hence it is new. Then you take the contribution which is, let's say, waterproof wheels and a hovercraft engine that blows air to lift the car up from the ground. This contribution is not obvious in the prior art and hence this invention involves an inventive step.
Where is the evaluation of using forces of nature? Would this be part of the inventive step evaluation? Or would you assess this *before* you look at the prior art?
Now the patent is granted, and someone files an opposition because he found prior art on using waterproof wheels and a hovercraft engine on boats. Given this prior art, the only difference is that it's now used in a car. I would say this makes the invention obvious. You would apparently say that using the teaching in a car does not learn you anything about forces of nature so it is not an invention anymore?
Applying what is already known is something that will happen without incentives (unless is not practical, and then we don't want it to happen).
This would seem to allow only patents which use at least one feature that is novel by itself. Otherwise, I can say all the features are known, so combining it is obvious by definition. That does not sound right to me.
We should be glad that we can do more things every day with what is already known, but that does not mean we need patents for these additional things.
I think we do, because making combinations of known things can result in quite useful new technical things. We should encourage that by allowing patents on it.
SOmehow you seem to apply the USA criteria: It's useful, let's patent it. In Europe we need that it's an invention, and not everything is.
No, I did not say that. But I do think that it should not matter whether there is a feature that is novel by itself.
Would you patent cinema? literature? math? Why or why not?
The question is impossible to answer, because there's no such thing as "patenting cinema". You can patent film projectors, cameras, arrangements to make 3D sound, cinema chairs, and so on. You can even patent ways to record a film to make it impossible for people to make illicit copies with a handheld camera in the theatre.
Arnoud
On 12 Dec 2002 at 0:42, Xavi Drudis Ferran wrote:
Yes it is important. But you can't make that distiction with software. As long as all your novel and inventive stuff is software, the information and the machine are the same. That's why you can't patent software, because you can publicize information and monopolize it at the same time, and with software, machine = software = information.
The big problem with saying software is information is how easy you can get shot down for it. Any half-witted lawyer would shred that argument to pieces and all the protesting in the world will not help you.
Hence the prevailing winds say software = the device. This is also wrong and we all (I think) know it, but because these are the only two areas known to the legal and political systems, we're getting burned for it.
I don't know how much support there is in here for it, but I believe software sits in a third category that needs special and distinct legal treatment.
Oh Arnoud, I should have thought through the last email better - I did *not* mean to say software is the same as design plans. They have similarities yes, but design plans are not useful without human involvement (supplying of materials for one thing). Software is eternally true and useful without any extra contextualisation.
The way to recover investment in software in being first to market, and being knowledgeable in your field. In software there are only two ways to compete: - having a monopoly - innovating In manufacturing you can compete by costs of raw materials, distribution channels, production capacity, etc.
I would add PR here too. If you look at Win95 vs. OS2/Warp, 95 won mostly because of an excellent PR campaign.
In software the marginal costs are the same for everybody, you won't be successful with your program if it doesn't something new or does it better.
I would disagree with this. Your software can do nothing new at all and indeed do it worse than the competition, but it can still sweep to success for all the technically wrong reasons.
So don't tell me there's no incentive to innovate, because innovate is what programmers do for a living. Setting up patents to incentivate innovation in knowledge economy is like granting monopoly for tightening bolts in industrial economy.
I'd also disagree with this. Most software engineers I /believe/ work in tying together other bits of software and producing a non- innovative work. I have no hard figures on this, but the bespoke software industry is mostly bread and butter programming doing nothing new and original at all.
Cheers, Niall
El Fri, Dec 13, 2002 at 05:02:05PM +0100, Niall Douglas deia:
On 12 Dec 2002 at 0:42, Xavi Drudis Ferran wrote:
Yes it is important. But you can't make that distiction with software. As long as all your novel and inventive stuff is software, the information and the machine are the same. That's why you can't patent software, because you can publicize information and monopolize it at the same time, and with software, machine = software = information.
The big problem with saying software is information is how easy you can get shot down for it. Any half-witted lawyer would shred that argument to pieces and all the protesting in the world will not help you.
We already know we don't agree in this.
So don't tell me there's no incentive to innovate, because innovate is what programmers do for a living. Setting up patents to incentivate innovation in knowledge economy is like granting monopoly for tightening bolts in industrial economy.
I'd also disagree with this. Most software engineers I /believe/ work in tying together other bits of software and producing a non- innovative work. I have no hard figures on this, but the bespoke software industry is mostly bread and butter programming doing nothing new and original at all.
I don't think many people are paid to reinvent the wheel. You either solve a yet unsolved problem (by tying together other bits of software, of course) or you get something already done. The fact that the unresolved problem is (to some) as uniretesting as a pay roll or as interested as eliptical curve cryptograhy has nothing to do with the fact that it is a new solution to a new problem. This would be called innovative in manufacturing, but it is the norm in software, and so you call it bread and butter.
The fact that innovation in software is typically incremental is a consequence of the fact that it all happens inside a fixed formal framework. But incrementality does not mean lack of innovation.
That's why I don't value blue-sky innovation so much.
Anyway, a patent is not a stamp of technical excellence (EPO dixit) and the inventiveness level required for any patent is way beyond your threshold I'm afraid.
On 14 Dec 2002 at 3:07, Xavi Drudis Ferran wrote:
The big problem with saying software is information is how easy you can get shot down for it. Any half-witted lawyer would shred that argument to pieces and all the protesting in the world will not help you.
We already know we don't agree in this.
Well, I suggest you try your argument in a court of law then! ;)
I'd also disagree with this. Most software engineers I /believe/ work in tying together other bits of software and producing a non- innovative work. I have no hard figures on this, but the bespoke software industry is mostly bread and butter programming doing nothing new and original at all.
I don't think many people are paid to reinvent the wheel. You either solve a yet unsolved problem (by tying together other bits of software, of course) or you get something already done. The fact that the unresolved problem is (to some) as uniretesting as a pay roll or as interested as eliptical curve cryptograhy has nothing to do with the fact that it is a new solution to a new problem. This would be called innovative in manufacturing, but it is the norm in software, and so you call it bread and butter.
No you're completely wrong here - the number of internally generated libraries never released to the public addressing a problem is huge. All this code could be reused but isn't. It's precisely this reason why free software is in orders of magnitude more efficient than proprietary - because work gets shared, not replicated.
The fact that innovation in software is typically incremental is a consequence of the fact that it all happens inside a fixed formal framework. But incrementality does not mean lack of innovation.
True, but incremental innovation tends to be obvious stuff. Blue-sky tends to be much less obvious and therefore much more innovative.
That's why I don't value blue-sky innovation so much.
If you look at the history of any science, radical departures while often not successful in themselves, often have a marked influence. Blue-sky innovation is the soul of improvement without which we'd still be using monolithic kernels and non-GUI OS's.
Cheers, Niall
On Fri, 2002-12-13 at 17:02, Niall Douglas wrote:
So don't tell me there's no incentive to innovate, because innovate is what programmers do for a living. Setting up patents to incentivate innovation in knowledge economy is like granting monopoly for tightening bolts in industrial economy.
I'd also disagree with this. Most software engineers I /believe/ work in tying together other bits of software and producing a non- innovative work. I have no hard figures on this, but the bespoke software industry is mostly bread and butter programming doing nothing new and original at all.
Sorry, but you are confusing invention with innovation. innovation has not much in common with invention.
If you take 2 known peaces of software and combine them to make something useful that's innovation, even if you used well known technology and concepts.
I'm using the term invention here more like most people intend it then like patent attorneys intend it tough.
Simo.
On 10 Dec 2002 at 11:49, Arnoud Galactus Engelfriet wrote:
For some reason, the legal profession has always eschewed integration of ethics, quite probably because half their work in side-stepping the intent of laws would evaporate. However, in my opinion all law should be subject not to its letter, but to its spirit and if we could change that, the world would be a much better place for it.
Fine with me. But again, currently it is not illegal to do something that apparently violates the spirit of a law if you stay within the letter of the law. If you want to call violating the spirit of a law an illegal act, go ahead, but you will create much confusion because the legal people and politicians you're trying to reach will be looking for violations of the letter of the law.
Oh I know - mine was a general utilitarian statement of "wouldn't things be better if ...". It won't happen quite simply because it's in the best interest of the powerful to keep the status quo.
I would say: "despite the fact that the European Patent Convention explicitly excludes computer software as such since 1973 and the 2000 EPC Diplomatic Conference made it clear the EPC Contracting States did not want to change this. Unfortunately, the proposed Directive will effectively render this provision null and void."
A bit of a mouthful for an opening paragraph. I'll see what I can do with it whilst keeping it factually correct.
I get the feeling that what you are trying to say is that doing something that goes against the original intent of the EPC is necessarily an illegal activity. This seems a bit strange to me, as lawmakers have the ability to override previous laws, don't they? If the EC now wants to override the provisions of the EPC, that may be a bad policy, but it's not a loophole. It's simply a new law.
Oh no, not all. I fully understand how reality is. It was merely an abstract wish.
which, as I've discussed in here at length, is a set of algorithms and therefore should be totally free in order to encourage competition to produce the best implementation.
The patents do not cover the standard itself, but only implementations of the standard. You can copy the standard as much as you want (subject to copyright restrictions of course) and distribute information in the standard to everyone. But as soon as you start implementing the standard, your implementation will infringe on some patents. And for particular implementations there might also be patents which you can work around by choosing a different implementation.
Here is precisely the knub of where the world went wrong with software and patents. You use "implementation" in the way they do but logically it is not equivalent to "implementation" with respect to other patentable devices.
I was using "implementation" in its software context ie; the software code itself. This would equally apply to the design of the circuits of the hardware because as you previously pointed out, there is considerable scope for the dividing point between hardware and software in an overall system.
Now if we used this correct form of "implementation", I would infringe on MPEG2 patents during my implementation only if my software or hardware bore a striking resemblence to another existing implementation. This is *separate* from the algorithms.
Obviously, with some care, there can be near infinite implementations of identical algorithms just as there can be near infinite implementations of a pump. Thus, the MPEG2 patents are precisely the worst kind of patent much in the same way as patenting all possible pumps is a stupid idea.
If you don't get what I'm on about and how I'm making this differentiation, please see http://mailman.fsfeurope.org/pipermail/discussion/2002- December/003514.html. It's effectively about the difference between an ideal thing and the thing itself.
I appreciate all that EuroLinux and the FFII have done, but could it not be argued a better approach is to say why the hell was this stupidity with hardware allowed in the first place? I can't see MPEG patents benefiting society at all eg; MPEG2 players for Linux and even MPEG2 players for Windows.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
On the specific design of circuits and wiring yes they should be permitted. But the current situation where it's impossible to implement MPEG2 in hardware without infringing a patent indicates the definition of "implementation" is wrong - this is more patenting the "generalised solution" than specific implementation.
We're about to run into the same problems with MPEG4 now it's been charged for. It seems to me a very stupid idea which discourages interoperability and improvements in technology. In other words, it's anti-quality and anti-usefulness.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
No, you could still get patents for your specific implementation which if it's the best and cheapest, others will licence it from you and you get your money. No one else could sell a facsimile for example, but they could sell a similar solution.
This would encourage competition and improved quality.
Most patents in general are not cash cows.
Except for IBM, the pharmaceutical companies and a few others.
Even to IBM most patents are not a cash cow. A small number of their patents bring in a lot of money, but most of them don't bring in any money.
I think the figure IBM makes is around 1 billion a year. This does not include I suspect the vastly larger income from cross-licensing and I wouldn't be surprised if the total net benefit would exceed 10 billion annually.
There are also plenty of non-monetary benefits such as improving the skill set of your employees, garnering ideas for new inventions etc. I reckon it's a cash cow for them.
Cheers, Niall
Niall Douglas wrote:
On 10 Dec 2002 at 11:49, Arnoud Galactus Engelfriet wrote:
I would say: "despite the fact that the European Patent Convention explicitly excludes computer software as such since 1973 and the 2000 EPC Diplomatic Conference made it clear the EPC Contracting States did not want to change this. Unfortunately, the proposed Directive will effectively render this provision null and void."
A bit of a mouthful for an opening paragraph. I'll see what I can do with it whilst keeping it factually correct.
Maybe you can make it multiple sentences? The fact that the EPC has had this exclusion since 1973 is a pretty strong argument that the situation shouldn't be changed. Then as an additional argument you provide the example that the Diplomatic Conference did not want to change this, confirming that apparently people still think this way.
Here is precisely the knub of where the world went wrong with software and patents. You use "implementation" in the way they do but logically it is not equivalent to "implementation" with respect to other patentable devices.
Ok. I see an implementation as computer software itself (ie, just the ones and zeros), but it has to be loaded into a programmable system to actually do anything. A blueprint for a chip design doesn't do anything either, but if you feed it into a chip manufacturing machine, it spits out something that can exhibit patentable behavior.
I was using "implementation" in its software context ie; the software code itself. This would equally apply to the design of the circuits of the hardware because as you previously pointed out, there is considerable scope for the dividing point between hardware and software in an overall system.
Can you make a definition that makes the distinction clear? I don't get any further than "the software is the bits you can't kick if it doesn't work". :-)
Now if we used this correct form of "implementation", I would infringe on MPEG2 patents during my implementation only if my software or hardware bore a striking resemblence to another existing implementation. This is *separate* from the algorithms.
Well, I think for infringement it would be sufficient if your program carried out the same steps as the patented technique. But yes, usually this means there is some degree of similarity.
Obviously, with some care, there can be near infinite implementations of identical algorithms just as there can be near infinite implementations of a pump. Thus, the MPEG2 patents are precisely the worst kind of patent much in the same way as patenting all possible pumps is a stupid idea.
This is actually exactly what happens when somebody comes up with a new hardware widget. In the early 1900s, the German company Singer had the patent on the sewing machine. Before that, there were several patents supposedly covering the steam engine, and development of steam-based engines didn't take off until the courts determined which one was the steam engine patent. In 1907 an American invented the supermarket and patented it. The transistor, in all its shapes and forms was patented, and nobody could use a transistor without paying royalties to Bell. There is still a big fight going on about who owns the patent to the semiconductor.
If you don't get what I'm on about and how I'm making this differentiation, please see http://mailman.fsfeurope.org/pipermail/discussion/2002- December/003514.html. It's effectively about the difference between an ideal thing and the thing itself.
I'm sorry, that message is a bit difficult to follow for me.
I don't understand this. Are you saying that patents on hardware implementations of MPEG should also not be permitted?
On the specific design of circuits and wiring yes they should be permitted. But the current situation where it's impossible to implement MPEG2 in hardware without infringing a patent indicates the definition of "implementation" is wrong - this is more patenting the "generalised solution" than specific implementation.
This is normal in the patent world. If you're the first to come up with a widget, you patent the widget itself and no one can use it no matter how they improve it or what particulars their implementation involves. The steam engine. The sewing machine. The supermarket. Heck, even the light bulb was patented in its most general form.
The counter argument would be that without the prospect of using patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters would not have made the investments to develop the standard in the first place. My company certainly wouldn't have.
No, you could still get patents for your specific implementation which if it's the best and cheapest, others will licence it from you and you get your money. No one else could sell a facsimile for example, but they could sell a similar solution.
This would encourage competition and improved quality.
Encouraging competition and stimulate rip-offs, yes. If a patent cannot protect you against differing implementations of your invention, it is of little use. Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
Kind regards,
Arnoud Engelfriet
On 11 Dec 2002 at 13:22, Arnoud Galactus Engelfriet wrote:
I was using "implementation" in its software context ie; the software code itself. This would equally apply to the design of the circuits of the hardware because as you previously pointed out, there is considerable scope for the dividing point between hardware and software in an overall system.
Can you make a definition that makes the distinction clear? I don't get any further than "the software is the bits you can't kick if it doesn't work". :-)
It's a fundamental but common mistake to assume that just because something cannot be seen or touched that it doesn't not have integral worth. A piece of software is still useful where it has accompanying hardware or not, just as the designs for a piece of hardware or a house do.
On the other hand, the formulae and theory for software, hardware or a house (eg; insulation stops heat escaping) should be free.
I appreciate everyone on this list attempting to draw artificial lines between things and in the whole I support however much artificiality which is good for the market. However, philosophically, software and algorithms simply can not be identical and by thinking them so, one introduces much confusion and discord as is usual from a fault in the underlying logic.
The entire existance of software patents is a direct result from this logical mistake. Everyone is running around chasing their tail while we get it in the neck because of this fault in logic.
Now if we used this correct form of "implementation", I would infringe on MPEG2 patents during my implementation only if my software or hardware bore a striking resemblence to another existing implementation. This is *separate* from the algorithms.
Well, I think for infringement it would be sufficient if your program carried out the same steps as the patented technique. But yes, usually this means there is some degree of similarity.
The acid test in my view of whether a patent should apply is if there is a striking resemblence. So for example, if Dyson patented his vortex vacumn cleaner then nothing should prohibit anyone else using a vortex in their vacumn cleaner so long as it's substantially different from the way he employed his vortex. I know this isn't the case in reality, but it should be given the founding principles of the patent system.
Obviously, with some care, there can be near infinite implementations of identical algorithms just as there can be near infinite implementations of a pump. Thus, the MPEG2 patents are precisely the worst kind of patent much in the same way as patenting all possible pumps is a stupid idea.
This is actually exactly what happens when somebody comes up with a new hardware widget. In the early 1900s, the German company Singer had the patent on the sewing machine. Before that, there were several patents supposedly covering the steam engine, and development of steam-based engines didn't take off until the courts determined which one was the steam engine patent. In 1907 an American invented the supermarket and patented it. The transistor, in all its shapes and forms was patented, and nobody could use a transistor without paying royalties to Bell. There is still a big fight going on about who owns the patent to the semiconductor.
These are all good examples of what is bad for society. Patents should be there to encourage entrepreneurship because *that* is good for society. If one were to go with complete bans of all competing devices (for simplicity purposes), then a variable length maximum duration should be in effect. For software, I think three years - for something like vacumn cleaners, possibly ten. Twenty years for everything is too much.
If you don't get what I'm on about and how I'm making this differentiation, please see http://mailman.fsfeurope.org/pipermail/discussion/2002- December/003514.html. It's effectively about the difference between an ideal thing and the thing itself.
I'm sorry, that message is a bit difficult to follow for me.
Given not a single person challenged me on it, I guess it was for everyone else too.
On the specific design of circuits and wiring yes they should be permitted. But the current situation where it's impossible to implement MPEG2 in hardware without infringing a patent indicates the definition of "implementation" is wrong - this is more patenting the "generalised solution" than specific implementation.
This is normal in the patent world. If you're the first to come up with a widget, you patent the widget itself and no one can use it no matter how they improve it or what particulars their implementation involves. The steam engine. The sewing machine. The supermarket. Heck, even the light bulb was patented in its most general form.
Just because it's done everywhere doesn't mean (a) they're right and (b) that the entire system is wrong. I think the basic idea is sound but it's been abused greatly and misapplied to the wrong things. It needs reform overall sure, but I as a software engineer am most concerned with software.
No, you could still get patents for your specific implementation which if it's the best and cheapest, others will licence it from you and you get your money. No one else could sell a facsimile for example, but they could sell a similar solution.
This would encourage competition and improved quality.
Encouraging competition and stimulate rip-offs, yes. If a patent cannot protect you against differing implementations of your invention, it is of little use. Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
I wasn't aware that there is any other law preventing say Dyson producing his vacumn cleaner and then Hoover replicating the exact design but sold for fifty euro less? I had thought patents were the only thing preventing direct copies?
In my view, there should always be scope for competitor improvement. The reward still remains high enough for the inventor to keep them interested.
Cheers, Niall
Niall Douglas wrote:
On 11 Dec 2002 at 13:22, Arnoud Galactus Engelfriet wrote:
Well, I think for infringement it would be sufficient if your program carried out the same steps as the patented technique. But yes, usually this means there is some degree of similarity.
The acid test in my view of whether a patent should apply is if there is a striking resemblence.
I agree. That's where the claims come in: they define the invention, and if your device matches the claims, it infringes. If it does not match the claims, it does not infringe (ignoring provisions on "equivalence" for a second).
So for example, if Dyson patented his vortex vacumn cleaner then nothing should prohibit anyone else using a vortex in their vacumn cleaner so long as it's substantially different from the way he employed his vortex.
That's correct, *BUT* you have to take a look at the claims to see in which way he used his vortex. It does not matter which variation he sells.
If the claim says "characterized by means for producing a vortex in a chamber connected to the vacuum cleaner hose", then any vortex-based cleaner would infringe. Do you agree with this approach/
I know this isn't the case in reality, but it should be given the founding principles of the patent system.
You should not confuse particular embodiments as sold by the inventor with what the actual invention is. In Dyson's case, as I understand it the invention *is* that you should create a vortex to suck up dirt. So he should get a patent on that invention, because that is his contribution to society: "Hey people, you should cause a vortex in your cleaners, it sucks much better that way!"
This is actually exactly what happens when somebody comes up with a new hardware widget. In the early 1900s, the German company Singer had the patent on the sewing machine. Before that, there were several patents supposedly covering the steam engine, and development of steam-based engines didn't take off until the courts determined which one was the steam engine patent. In 1907 an American invented the supermarket and patented it. The transistor, in all its shapes and forms was patented, and nobody could use a transistor without paying royalties to Bell. There is still a big fight going on about who owns the patent to the semiconductor.
These are all good examples of what is bad for society. Patents should be there to encourage entrepreneurship because *that* is good for society.
How can the inventor compete with people who copy his invention?
If one were to go with complete bans of all competing devices (for simplicity purposes), then a variable length maximum duration should be in effect. For software, I think three years - for something like vacumn cleaners, possibly ten. Twenty years for everything is too much.
That is quite possible. The reward should be sufficient to encourage innovation, but not so much that it outweighs the benefits to society.
Encouraging competition and stimulate rip-offs, yes. If a patent cannot protect you against differing implementations of your invention, it is of little use. Other laws are already available to protect against people making copies of your device. The whole idea behind patent law is to give you protection for your technical idea.
I wasn't aware that there is any other law preventing say Dyson producing his vacumn cleaner and then Hoover replicating the exact design but sold for fifty euro less? I had thought patents were the only thing preventing direct copies?
The legal term is "slavish copying". It generally only applies if it's basically a clone in function & form. You could maybe also claim copyright or model/design protection against people who copy your device. Unfair competition may also apply.
Patents are much broader. They protect against copying technical ideas, even if the implementation is different. And then a competitor is forced to come up with a really different way of solving the problem. This gives him a different idea to patent, and then society has two ways of solving the problem.
In my view, there should always be scope for competitor improvement. The reward still remains high enough for the inventor to keep them interested.
I think a better solution is that if you come up with an improvement, you should patent that as well. And that should give you a right to demand a license from the original inventor. This is called 'compulsory licensing'.
Kind regards,
Arnoud Engelfriet
On 15 Dec 2002 at 14:16, Arnoud Galactus Engelfriet wrote:
The acid test in my view of whether a patent should apply is if there is a striking resemblence.
I agree. That's where the claims come in: they define the invention, and if your device matches the claims, it infringes. If it does not match the claims, it does not infringe (ignoring provisions on "equivalence" for a second).
I think my definition of "striking" is quite different to that of patent law. Mine is much more narrow.
So for example, if Dyson patented his vortex vacumn cleaner then nothing should prohibit anyone else using a vortex in their vacumn cleaner so long as it's substantially different from the way he employed his vortex.
That's correct, *BUT* you have to take a look at the claims to see in which way he used his vortex. It does not matter which variation he sells.
If the claim says "characterized by means for producing a vortex in a chamber connected to the vacuum cleaner hose", then any vortex-based cleaner would infringe. Do you agree with this approach/
No, that is too general a patent in my view. Dyson could hold a patent for using a vortex in a space L x W x H for removing X grammes of dirt per metre cubed a second. That's fine with me and anyone producing a device performing similarly should infringe the patent.
If however a competitor produces a similar vortex-based product which extracts twice as much dirt with the same sized vortex, he should *not* infringe the patent.
That's for hardware though. Software isn't hardware, so different rules apply.
I know this isn't the case in reality, but it should be given the founding principles of the patent system.
You should not confuse particular embodiments as sold by the inventor with what the actual invention is. In Dyson's case, as I understand it the invention *is* that you should create a vortex to suck up dirt. So he should get a patent on that invention, because that is his contribution to society: "Hey people, you should cause a vortex in your cleaners, it sucks much better that way!"
My major problem with the patent system as a whole is it gives too much to the patent owner with not enough benefits to society. If they narrowed down what was patentable like above, there would be little damaging the patent owner so long as they held the best product.
This is actually exactly what happens when somebody comes up with a new hardware widget. In the early 1900s, the German company Singer had the patent on the sewing machine. Before that, there were several patents supposedly covering the steam engine, and development of steam-based engines didn't take off until the courts determined which one was the steam engine patent. In 1907 an American invented the supermarket and patented it. The transistor, in all its shapes and forms was patented, and nobody could use a transistor without paying royalties to Bell. There is still a big fight going on about who owns the patent to the semiconductor.
These are all good examples of what is bad for society. Patents should be there to encourage entrepreneurship because *that* is good for society.
How can the inventor compete with people who copy his invention?
If the copy is substantially superior, then via the usual channels of lower price or PR. Otherwise they should be doomed.
If one were to go with complete bans of all competing devices (for simplicity purposes), then a variable length maximum duration should be in effect. For software, I think three years - for something like vacumn cleaners, possibly ten. Twenty years for everything is too much.
That is quite possible. The reward should be sufficient to encourage innovation, but not so much that it outweighs the benefits to society.
Precisely!
I wasn't aware that there is any other law preventing say Dyson producing his vacumn cleaner and then Hoover replicating the exact design but sold for fifty euro less? I had thought patents were the only thing preventing direct copies?
The legal term is "slavish copying". It generally only applies if it's basically a clone in function & form. You could maybe also claim copyright or model/design protection against people who copy your device. Unfair competition may also apply.
That's /too/ narrow. I mean something in between.
In my view, there should always be scope for competitor improvement. The reward still remains high enough for the inventor to keep them interested.
I think a better solution is that if you come up with an improvement, you should patent that as well. And that should give you a right to demand a license from the original inventor. This is called 'compulsory licensing'.
Hmm sounds highly suspect to me. Doesn't give enough benefit to the person with the best technology in my view.
Let me be clear: I do support a form of patents on software. I believe protection from unpermitted mass copying is bad for entrepreneurship which I believe to be one of the best things about capitalism and something "free" software totally lacks. People on this list strongly disagree with my position but in my view no one has proved my logic wrong - it would seem our basic axioms differ but yet no one challenged the logic behind my own axioms. Hence, I am tending to believe I am right in my beliefs.
However, what I want to get across to you, especially as you are a patent lawyer, is that the entire patent system is broken. It is not hugely noticeable normally, but with software its "brokeness" becomes exaggerated to the point of being extremely bad for the industry and society in general. Now while software is not like any other patentable item and thus should have its own rule set, the application of traditional modes of thinking are merely showing how the logic behind all patents is just plain and simple broken.
There are many historical reasons why this logic is broken, some residing from not having thought through the matter sufficiently to powerful commercial interests tweaking things to improve their profits. Nevertheless, it in its entirity needs reform.
Cheers, Niall
On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
Those institutions granting software patents are not legitimated by the stablished law, they are only legitimated by their own interpretation of the law. For me there's a big difference. Specially when their interpretation simply does not make sense.
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
I think it is very important to reject the interpretation and any efforts to be dragged into a bottomless discussion of what the law might say. The law is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.
And a software patent claim does not become a non-software patent claim by putting the software on a data medium (see the IBM case). It is downright outrageous that this was even attempted. It shows clearly that the patent practice has left the law behind.
Don't make it appear as if there was any confusion about what is software and what is technical. This discussion has already happened in the 50s, 60s, 70s at lengths. In the words of the German Federal Court of Justice (BGH) in its famous Dispositionsprogramm decision of 1976 (translation by Hartmut Pilch):
Stets ist aber die planmäßige Benutzung beherrschbarer Naturkräfte als unabdingbare Voraussetzung für die Bejahung des technischen Charakters einer Erfindung bezeichnet worden. Wie dargelegt, würde die Einbeziehung menschlicher Verstandeskräfte als solcher in den Kreis der Naturkräfte, deren Benutzung zur Schaffung einer Neuerung den technischen Charakter derselben begründen, zur Folge haben, dass schlechthin allen Ergebnissen menschlicher Gedankentätigkeit, sofern sie nur eine Anweisung zum planmäßigen Handeln darstellen und kausal übersehbar sind, technische Bedeutung zugesprochen werden müsste. Damit würde aber der Begriff des Technischen praktisch aufgegeben, würde Leistungen der menschlichen Verstandestätigkeit der Schutz des Patentrechts eröffnet, deren Wesen und Begrenzung nicht zu erkennen und übersehen ist.
However in all cases the plan-conformant utilisation of controllable natural forces has been named as an essential precondition for asserting the technical character of an invention. As shown above, the inclusion of human mental forces as such into the realm of the natural forces, on whose utilisation in creating an innovation the technical character of that innovation is founded, would lead to the consequence that virtually all results of human mental activity, as far as they constitute an instruction for plan-conformant action and are causally overseeable, would have to be attributed a technical meaning. In doing so, we would however de facto give up the concept of the technical invention and extend the patent system to a vast field of achievements of the human mind whose essence and limits can neither be recognized nor overseen.
There are many software patents being granted, and they are all granted in disagreement with the law. The reason this was possible is that the patent attorneys have invented an artificial language that clouds the simple facts into a pseudo technical framework, and that the public was mostly ignorant about this for many years. I am sure that if stealing would be treated in courts like patent claims are being treated, there would be a row in the streets.
And it is important to note that we are not advocating a change in law, but the pro-swpat camp is. We just want the current law to be observed in a much more rational way than it is currently.
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
This is a very twisted way to look at the situation. The 1970s situation is what the law is today. It is also what TRIPS demands. It is what every law scholars advise.
You are right in that the law has been ignored and overcome by current practice to grant patents on everything that remotely has some technical language in it. However, this is no reason to change the law, but a reason to control the patent office better so that it does its job properly.
Please give me one example of a software patent (or claim thereof) where a program should be patentable because it has a further technical effect just like a hardware invention needs to do. Just one example, and don't forget to describe what the technical effect is, in normal language that can be understood by the people here on the list.
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares.
I want to see one middle size company which goes ahead and sues IBM or Microsoft over an alleged patent violation. Of course, it is also the small companies and last but not least the free software programmers.
Even now, where software patents are not legally possible, people have been forced to retract software from the web because companies came with a possibly invalid patent and claimed that the software published violates it. The harm is already being done, and nobody, not even the big companies, say "go ahead and sue me". They are more likely to say "hey, let's go ahead and exchange licenses" (cross licensing).
But that only works for really clear-cut cases, like when you have a publication describing all of the invention. If it is debatable, you don't want to end up in court since you may lose.
There are no clear-cut cases.
I think however that most large companies take the view that software is nothing special. Why is an MPEG patent valid against a decoder board in a DVD player, but not against a software player which does exactly the same thing? And what if I put that software player on a flash ROM on that decoder board? And that's actually also the reason why you will not get much public support from large companies. If "software patents" become invalid, then it becomes much easier to rip off real inventions simply by doing parts in software.
In fact, most companies are against software patents, or don't have an opinion by themselves and leave the talking to the patent attorneys that advice them. Even the members of the BSA (like Oracle, ...) have said that they don't want software patents, except for two notable exceptions: IBM and Microsoft. Both already have a rich patent portfolio which they use to reinforce their monopoly: By cross licensing, threating, or by protecting standard documents so that no competing implementations are possible.
Most software patents, though are not such a cash cow.
Most patents in general are not cash cows.
That is true for the companies who apply for them. However, every patent is a cash cow for a patent attorney, and for the patent offices around the world.
Thanks, Marcus
Marcus Brinkmann wrote:
On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
I think it is very important to reject the interpretation and any efforts to be dragged into a bottomless discussion of what the law might say. The law is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.
The law is not very clear, because of that "as such" restriction in 52(3). What the heck does that mean? If it doesn't mean anything, why is it there?
Don't make it appear as if there was any confusion about what is software and what is technical. This discussion has already happened in the 50s, 60s, 70s at lengths. In the words of the German Federal Court of Justice (BGH) in its famous Dispositionsprogramm decision of 1976 (translation by Hartmut Pilch):
The fact that the German Federal Court of Justice has explicitly abandoned this interpretation in more recent decisions shows that the subject is still open for debate. Is it not possible for people, even Supreme Court justices, to change their views on what is patentable?
The pro-swpat camp actually also believes you are advocating a change in the law. You want to go back to the 1970s situation with the old German "controllable forces of nature" approach. On the other hand they want to keep things as it is: programs are patentable, but only if they exhibit a further technical effect just like a hardware invention needs to do.
This is a very twisted way to look at the situation. The 1970s situation is what the law is today. It is also what TRIPS demands. It is what every law scholars advise.
TRIPS demands patents in all fields of technology. Excluding software-based implementations from patent protection violates TRIPS.
Please give me one example of a software patent (or claim thereof) where a program should be patentable because it has a further technical effect just like a hardware invention needs to do. Just one example, and don't forget to describe what the technical effect is, in normal language that can be understood by the people here on the list.
This question is impossible to answer, since we haven't defined what a technical effect is. I can quote you patents with potential software embodiments that achieve effects such as a faster working of the machine, a higher accuracy of fuel usage in a car engine, a better measuring of data, reduced storage capacity for a signal to be recorded and so on. Are such effects "technical"? In my opinion yes, but what about you?
Well, yes, but if someone comes to you with an invalid patent you normally don't settle for a small amount. If you know it's invalid, you can say "go ahead and sue me" and see if he dares.
I want to see one middle size company which goes ahead and sues IBM or Microsoft over an alleged patent violation. Of course, it is also the small companies and last but not least the free software programmers.
Is Intertrust "middle-sized"? http://www.intertrust.com/main/home/press/2002/020624_broaden.html
Is Eolas "middle-sized"? http://www.eolas.com/zmapress.htm
Is Priceline "middle-sized"? http://www.zdnet.com/zdnn/stories/news/0,4586,2353458,00.html
Is AT&T "middle-sized"? http://www.idg.net/idgns/2001/06/05/UPDATEATTSuesMicrosoftOver.shtml
They all sued Microsoft for patent infringement.
Kind regards,
Arnoud Engelfriet
On Wed, Dec 11, 2002 at 01:32:36PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus Brinkmann wrote:
On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
Then say it doesn't make sense. "Illegal" means something more serious, especially to lawyers and politicians, and I think you're sending the wrong message if you call this illegal.
I think it is very important to reject the interpretation and any efforts to be dragged into a bottomless discussion of what the law might say. The law is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.
The law is not very clear, because of that "as such" restriction in 52(3). What the heck does that mean? If it doesn't mean anything, why is it there?
It means what it means. I am sure you have heard those words before. A "program as such" is any program, but only that program. It means that "only a program" can not be patented. The clause requests from examiners to analyse that if a patent claim combines hardware and software, to look carefully where the novelty and the technology lies. It must be in the hardware, because a computer program as such can not be patented.
It is true that the EPO does use this clause to split computer programs into programs "as-such" and programs "not-as-such". This interpretation is at odds with grammar and history of patent law. It is interesting to point out that danish and swedish law dropped this clause when incorporating art 52.
So why do we have to have absurd discussions as to what "as such" means? We have to keep going on with such discussions because the EPO (and current BGH, and others) are in full realization of working against the law, and they have to grasp to every straw to justify what they are doing. Even if it means to throw over board common sense and logic.
The EPO and evey patent attorney is painfully aware of the restriction in 52(3). Otherwise they wouldn't bother so much to construct ambiguities and miusunderstandings even where they aren't any. The complexity that these constructions bring into the discussion are completey artificial, and they drag a lot of energy out of the participants. But they will fail to reach their goal, because eventually clearity and ration will prevail.
Don't make it appear as if there was any confusion about what is software and what is technical. This discussion has already happened in the 50s, 60s, 70s at lengths. In the words of the German Federal Court of Justice (BGH) in its famous Dispositionsprogramm decision of 1976 (translation by Hartmut Pilch):
The fact that the German Federal Court of Justice has explicitly abandoned this interpretation in more recent decisions shows that the subject is still open for debate. Is it not possible for people, even Supreme Court justices, to change their views on what is patentable?
The dispositionsprogram from 1076 was an attempt to summarize a discussion that was ongoing for 20 years at that time. Since then, other judges are in the BGH. Only since about 1992 the BGH is the leader in patent inflation, leaving behind even the EPO and the patent lobby. It seems that judge Robbe is responsible for this change in policy.
Of course a court can attempt to change the meaning of a law by executing decisions that stretch the meaning of the law and change the interpretation of sentences that used to be clear a few years before. However, if that happens, it is important to notice that even a court can not really judge against its earlier decisions, so usually very clever constructs and careful, often ambigious decisions have to be made. In any case, it is then the task of the politic to constraint the courts by reinforcing the law (probably changing the wording a bit so that the clever tricks are not possible any more).
TRIPS demands patents in all fields of technology. Excluding software-based implementations from patent protection violates TRIPS.
What is a "software-based implementation"? I don't know that term, if you could please define it, thank you.
Computer programming is not a field of technology. Just as math isn't.
Please give me one example of a software patent (or claim thereof) where a program should be patentable because it has a further technical effect just like a hardware invention needs to do. Just one example, and don't forget to describe what the technical effect is, in normal language that can be understood by the people here on the list.
This question is impossible to answer, since we haven't defined what a technical effect is. I can quote you patents with potential software embodiments that achieve effects such as a faster working of the machine, a higher accuracy of fuel usage in a car engine, a better measuring of data, reduced storage capacity for a signal to be recorded and so on. Are such effects "technical"? In my opinion yes, but what about you?
Then please quote such patent claims which you think should granted. For now, I am happy to leave the interpretation of "technical effect" completely up to you, and exercise scrutiny only on the examples you will come up with. I suspect that the reasons pro-software-patent people don't come up with examples is that they really want unlimited patentability, and don't want to limit themselves to a certain set of examples (nor release their true intentions).
I want to see one middle size company which goes ahead and sues IBM or Microsoft over an alleged patent violation. Of course, it is also the small companies and last but not least the free software programmers.
Is Intertrust a middle-size company? http://www.intertrust.com/main/home/press/2002/020624_broaden.html
[...]
[...]
http://www.zdnet.com/zdnn/stories/news/0,4586,2353458,00.html
[...]
http://www.idg.net/idgns/2001/06/05/UPDATEATTSuesMicrosoftOver.shtml
They all sued Microsoft for patent infringement.
Sure, but our starting point was that you said that if a patent is invalid, one could simply violate it and say to the patent holder "come and sue me". In all the four cases, Microsoft simply violated patents and said: "come and sue me". But MS is _not_ a middle sized company, it is a very big company. It is easy for Microsoft to say "sue me".
Now, how about an example in the other direction?
Thanks, Marcus
Marcus Brinkmann wrote:
On Wed, Dec 11, 2002 at 01:32:36PM +0100, Arnoud Galactus Engelfriet wrote:
The law is not very clear, because of that "as such" restriction in 52(3). What the heck does that mean? If it doesn't mean anything, why is it there?
It means what it means. I am sure you have heard those words before. A "program as such" is any program, but only that program. It means that "only a program" can not be patented. The clause requests from examiners to analyse that if a patent claim combines hardware and software, to look carefully where the novelty and the technology lies. It must be in the hardware, because a computer program as such can not be patented.
No, it means that a computer program by itself cannot be patented. A hardware device that contains some software can be an invention, even if the invention resides in the software. If "program as such" is 'only the program', then adding a programmable hardware device makes the claim more than 'only the program'. So "hardware+program" is an invention.
Keep in mind there is a difference between "invention" and "having an inventive step" in the EPC.
So why do we have to have absurd discussions as to what "as such" means?
If you want to call it absurd, fine, but then we're through debating.
Of course a court can attempt to change the meaning of a law by executing decisions that stretch the meaning of the law and change the interpretation of sentences that used to be clear a few years before. However, if that happens, it is important to notice that even a court can not really judge against its earlier decisions, so usually very clever constructs and careful, often ambigious decisions have to be made.
Of course a court can set aside or override previous decisions, especially in countries where court rulings are not binding precedent anyway. But it happens even in common law countries that the SC overrules itself.
In any case, it is then the task of the politic to constraint the courts by reinforcing the law (probably changing the wording a bit so that the clever tricks are not possible any more).
Either that, or to change the law to accomodate the new direction chosen by the court.
TRIPS demands patents in all fields of technology. Excluding software-based implementations from patent protection violates TRIPS.
What is a "software-based implementation"? I don't know that term, if you could please define it, thank you.
Sorry, I meant software-based inventions. I.e. inventions which can be at least partially realized using software.
Computer programming is not a field of technology. Just as math isn't.
Programming is applied mathematics, just like engineering is applied physics. Applied sciences are patentable subject matter.
This question is impossible to answer, since we haven't defined what a technical effect is. I can quote you patents with potential software embodiments that achieve effects such as a faster working of the machine, a higher accuracy of fuel usage in a car engine, a better measuring of data, reduced storage capacity for a signal to be recorded and so on. Are such effects "technical"? In my opinion yes, but what about you?
Then please quote such patent claims which you think should granted. For now, I am happy to leave the interpretation of "technical effect" completely up to you, and exercise scrutiny only on the examples you will come up with.
I've got a list of examples at http://www.iusmentis.com/patents/businessmethods/epoexamples/ Not all of them really establish a technical effect, which IMO illustrates how difficult it is to define this properly.
Technical effects: Reducing the bandwidth between clients and servers: EP 407 026
Using a second, separate channel to authenticate someone makes a system more secure: EP 416 482
Avoiding the need for storage on a client system in a Web shopping system: EP 784 279
Integrating a PIN card and a SIM card in a single device: EP 929 880
(hyperlinks to the patents are on the above-mentioned URL)
Keep in mind "technical effect" means something is an invention, even though the solution may be obvious. For example, using an out-of-band channel to receive a password is a technique that's known per se. But it achieves the technical effect of making the system more secure. The invention would probably be obvious, unless they were the first to come up with the concept of out-of-band channels.
Some more examples. Saving memory, increasing speed, improving security, operating a user interface (T 236/91, T 59/93), configuring the operating system (T 265/92), coordinating and controlling internal data (T 6/83), or assisting in solving diagnostic problems in data communication (T 216/89) all are technical.
A system that can manage a pension fund is an invention, even though it uses software for 90% of the claimed features. It was deemed obvious because managing a pension fund is a business method (T 931/95).
Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data.
[T = EPO Board of Appeals decision]
I suspect that the reasons pro-software-patent people don't come up with examples is that they really want unlimited patentability, and don't want to limit themselves to a certain set of examples (nor release their true intentions).
That is not fair, you don't know anything about me yet you presume to know what I am after or why I am discussing this. I can say all kinds of nasty allegations about you too, but I don't. Let's keep it polite, please?
I want to see one middle size company which goes ahead and sues IBM or Microsoft over an alleged patent violation. Of course, it is also the small companies and last but not least the free software programmers.
Is Intertrust a middle-size company? http://www.intertrust.com/main/home/press/2002/020624_broaden.html
[...]
[...]
http://www.zdnet.com/zdnn/stories/news/0,4586,2353458,00.html
[...]
http://www.idg.net/idgns/2001/06/05/UPDATEATTSuesMicrosoftOver.shtml
They all sued Microsoft for patent infringement.
Sure, but our starting point was that you said that if a patent is invalid, one could simply violate it and say to the patent holder "come and sue me". In all the four cases, Microsoft simply violated patents and said: "come and sue me". But MS is _not_ a middle sized company, it is a very big company. It is easy for Microsoft to say "sue me".
Now, how about an example in the other direction?
I am not so sure anymore I understand the point we're arguing here. Should I cite examples of IBM sueing a small company for patent infringement? Or cite proof that the alleged infringer knew the patent was invalid?
Kind regards,
Arnoud Engelfriet
Hi,
On Fri, Dec 13, 2002 at 01:29:54PM +0100, Arnoud Galactus Engelfriet wrote: [about the meaning of "as such"]
No, it means that a computer program by itself cannot be patented. A hardware device that contains some software can be an invention, even if the invention resides in the software.
That's what the EPO wants it to mean, but that is not supported by the law and any rational interpretation of it. It is the EPO which invented the term "technical effect" to justify granting software patents, but the distinction between "a program as such" and "a program with a technical effect" is not a distinction you can derive from reading the law.
In other words, the EPO wanted to grant patents on software. Because they couldn't do it i a straightforward way, they had to be very clever and create a construct that would allow them to do so. The construct is that of the "technical effect" and the artificial distinction between a "program as such" and a "program with a technical effect".
It is this artificial construct, which I think is in violation of the law, both in intention and to the letter.
There were loads of discussions about this term, and we certainly could go on repeating the details of the discussion here. Or we could just both go and read up the discussion on swpat.ffii.org ;). But on the other hand, it is probably less work for both of us if I end the discussion before it really started and say that I reject the construct of the distinction between "a program as such" and "a program with a technical effect", claiming that if you allow a patent on the latter you fundamentally allow patents on the former as well. As I assume from the rest of your mail that this is a distinction you want to draw, it's probably better for us to retract in the agreement of disagreeing. Otherwise, read on :)
Keep in mind there is a difference between "invention" and "having an inventive step" in the EPC.
Can you remind me of that difference?
In any case, it is then the task of the politic to constraint the courts by reinforcing the law (probably changing the wording a bit so that the clever tricks are not possible any more).
Either that, or to change the law to accomodate the new direction chosen by the court.
There are two reasons why this would be bad. First, it would be directly against the idea of division of power. The conclusion to what the law needs to be changed must be made by politicians, which are bound to the will of the citizens whom by they are elected. At least in Germany there is only one court which is able to give directions to politicians how law should look like (Bundesverfassungsgericht - Federal Court of Constitution?).
TRIPS demands patents in all fields of technology. Excluding software-based implementations from patent protection violates TRIPS.
What is a "software-based implementation"? I don't know that term, if you could please define it, thank you.
Sorry, I meant software-based inventions. I.e. inventions which can be at least partially realized using software.
Can you give an example? I think it is crucial to find out if the invention is in the software or in the hardware. If it is just some new hardware invention with some software (inventive or conventional) slabbed to it, I have no concerns. If it is software with just some "technical vocabulary" slabbed to it, to make it look more technical, I have a fundamental objection.
Computer programming is not a field of technology. Just as math isn't.
Programming is applied mathematics, just like engineering is applied physics. Applied sciences are patentable subject matter.
Irregardless of whether programming is applied math, I have never heard before that all applied sciences are patentable subject matter. I think you just made that up.
Then please quote such patent claims which you think should granted. For now, I am happy to leave the interpretation of "technical effect" completely up to you, and exercise scrutiny only on the examples you will come up with.
I've got a list of examples at http://www.iusmentis.com/patents/businessmethods/epoexamples/ Not all of them really establish a technical effect, which IMO illustrates how difficult it is to define this properly.
Ok, thanks. Those example give me indeed a very good idea what we are talking about. I am not going to even try to read the claims of these patents, but the one line summary is interesting and probably enough to keep the discussion forward.
Technical effects: Reducing the bandwidth between clients and servers: EP 407 026
Using a second, separate channel to authenticate someone makes a system more secure: EP 416 482
Avoiding the need for storage on a client system in a Web shopping system: EP 784 279
The above sound just like what we call "software patents", ie, patents on a program as such, rather than a technical invention that teaches us more about the forces of nature.
Integrating a PIN card and a SIM card in a single device: EP 929 880
This is too unspecific to tell about, and following the patent link requires javascript (which lynx doesn't support). So let's leave it out.
Keep in mind "technical effect" means something is an invention, even though the solution may be obvious.
According to the EPO, but I claim that this is not supported by law.
For example, using an out-of-band channel to receive a password is a technique that's known per se. But it achieves the technical effect of making the system more secure. The invention would probably be obvious, unless they were the first to come up with the concept of out-of-band channels.
Some more examples. Saving memory, increasing speed, improving security, operating a user interface (T 236/91, T 59/93), configuring the operating system (T 265/92), coordinating and controlling internal data (T 6/83), or assisting in solving diagnostic problems in data communication (T 216/89) all are technical.
If saving memory is a technical effect, then it's not a far step (certainly only an argumentative step) to either accept that all programs have a technical effect, or that you can every program technical by applying it to some specific technical problem (I guess every patent attorney who is worth his money is able to do so easily). This is exactly what I said above: the distinction isn't a distinction. All programs are either programs as such or programs with a technical effect or both.
Which is exactly why we have to reject software patents, because then the conclusions from the Dispositionsprogramm come true that everything that is thinkable is patentable. This is the big threat that we have to prevent from becoming real _and_ codified in european law.
Or to make it more specific: Saving memory is just the consequence of increasing the information density, or packing more information into less bits. That is also called compression. And information theory, in which compression algorithms live, is math.
Likewise for out-of-band channels. Channels are just transports. Using an extra channel is nothing that tells us more about the forces of nature. It is a purely abstract and logical construct with certain properties. One property is that using out of band channels is separating information into different separated streams. Everyone can come to that conclusion just by applying logic (well, perhaps everyone except AT&T which needed years to figure it out that they should probably use an out-of-band channel in their public phone system :). These are called logic patents, and even further illustrate the danger of software patents to restrict personal freedom.
Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data.
This is even scarier, and if you can write the above pargraph with a serious face you are probably lost to the pro-software-patent lobby and need to be rescued :).
Basically, what you just wrote is that a compression algorithm is technical if it is applied to an image and it is not technical if it is applied to text. I am throwing my hands up in despair. I have nothing to counter that argument, except to reject the very idea of a compression algorith _ever_ to be technical.
[T = EPO Board of Appeals decision]
I suspect that the reasons pro-software-patent people don't come up with examples is that they really want unlimited patentability, and don't want to limit themselves to a certain set of examples (nor release their true intentions).
That is not fair, you don't know anything about me yet you presume to know what I am after or why I am discussing this. I can say all kinds of nasty allegations about you too, but I don't. Let's keep it polite, please?
Sorry, no that is not what I meant. I didn't really think that you are a pro-software-patent person. You might be, but you never said that, so I certainly don't assume it. You could just be playing devil's advocate, and it would be all the same for me :)
However, I hope you are against software patents, and that you help us to fight them, because they are harmful for our economy and personal freedom of expression.
[invalid patents]
I am not so sure anymore I understand the point we're arguing here.
Yeah, reading back the thread I can see how the discussion got side tracked, so I am dropping it here.
Thanks, Marcus
Marcus Brinkmann wrote:
On Fri, Dec 13, 2002 at 01:29:54PM +0100, Arnoud Galactus Engelfriet wrote: [about the meaning of "as such"]
No, it means that a computer program by itself cannot be patented. A hardware device that contains some software can be an invention, even if the invention resides in the software.
That's what the EPO wants it to mean, but that is not supported by the law and any rational interpretation of it.
No, the EPO seems to think that even a program by itself can be patented. I believe "program on carrier" is not statutory subject matter.
It is the EPO which invented the term "technical effect" to justify granting software patents, but the distinction between "a program as such" and "a program with a technical effect" is not a distinction you can derive from reading the law.
A program as such is an example of a thing without a technical effect. Hence it is unpatentable.
Keep in mind there is a difference between "invention" and "having an inventive step" in the EPC.
Can you remind me of that difference?
Article 52(1) says
European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
I can only conclude that being an invention is a requirement separate from the other three. If something is not an invention, then no patent shall be granted for it. Even if the something is new and involves an inventive step.
Looking at 52(2), it starts with "the following in particular shall not be regarded as inventions within the meaning of paragraph 1:" So you have to determine whether something is to be regarded as an invention when deciding whether to grant a patent for it.
Looking at 52(4), you see that medical treatments are deemed to be inventions which are not susceptible of industrial application within the meaning of paragraph 1. So apparently a medical treatment is an invention but it is not industrially applicable.
Sorry, I meant software-based inventions. I.e. inventions which can be at least partially realized using software.
Can you give an example? I think it is crucial to find out if the invention is in the software or in the hardware.
I think it is totally irrelevant whether the inventive aspect is in software or hardware.
If it is just some new hardware invention with some software (inventive or conventional) slabbed to it, I have no concerns. If it is software with just some "technical vocabulary" slabbed to it, to make it look more technical, I have a fundamental objection.
Let's say I have a car engine in which fuel injection is regulated by a valve coupled to a sensor. This way the car engine operates with a certain efficiency, because the signal from the sensor can open and close the valve. The inventive aspect is in the use of the valve and sensor. Is this an invention? I would say yes. And if the prior art does not teach using valves and sensors to regulate fuel injection, then the invention is not obvious and hence involves an inventive step.
Now, I come up with an additional invention. I am going to couple a programmed chip to the valve. The chip allows a much more precise evaluation of the output of the sensor so the valve can be opened and closed to allow a much more efficient fuel intake. Assuming the invention from the previous paragraph is the prior art, the inventive aspect would be in the use of the programmed chip. The chip is known by itself. Is this an invention? I would say yes, because just like the previous invention it provides efficient fuel intake.
How would you evaluate these patent applications?
Computer programming is not a field of technology. Just as math isn't.
Programming is applied mathematics, just like engineering is applied physics. Applied sciences are patentable subject matter.
Irregardless of whether programming is applied math, I have never heard before that all applied sciences are patentable subject matter. I think you just made that up.
It's what I believe is the realm of patent protection.
Technical effects: Reducing the bandwidth between clients and servers: EP 407 026
Using a second, separate channel to authenticate someone makes a system more secure: EP 416 482
Avoiding the need for storage on a client system in a Web shopping system: EP 784 279
The above sound just like what we call "software patents", ie, patents on a program as such, rather than a technical invention that teaches us more about the forces of nature.
That's probably correct. I do not think any of these can show a novel use of natural forces.
For example, using an out-of-band channel to receive a password is a technique that's known per se. But it achieves the technical effect of making the system more secure. The invention would probably be obvious, unless they were the first to come up with the concept of out-of-band channels.
Some more examples. Saving memory, increasing speed, improving security, operating a user interface (T 236/91, T 59/93), configuring the operating system (T 265/92), coordinating and controlling internal data (T 6/83), or assisting in solving diagnostic problems in data communication (T 216/89) all are technical.
If saving memory is a technical effect, then it's not a far step (certainly only an argumentative step) to either accept that all programs have a technical effect, or that you can every program technical by applying it to some specific technical problem (I guess every patent attorney who is worth his money is able to do so easily).
I think there is a difference between "technical effect" and "solving a technical problem". Technical effect makes something an invention, solving a technical problem [in a nonobvious way] makes something inventive.
And yes, all programs exhibit a technical effect. This is why the Board came up with the "further technical effect", as otherwise all programs would be patentable. So only if the saving of memory is a "further" technical effect is the program patentable.
This is exactly what I said above: the distinction isn't a distinction. All programs are either programs as such or programs with a technical effect or both.
Programs that lack a further technical effect are programs as such. That's what the EPO currently thinks.
Processing physical data is technical. Physical data may be, for example, data representing an image (T 208/84) or data representing parameters and control values of an industrial process (T 26/86). However, monetary values (T 953/94), business data (T 790/92) and text (T 38/86) are not physical data.
This is even scarier, and if you can write the above pargraph with a serious face you are probably lost to the pro-software-patent lobby and need to be rescued :).
The above paragraph reflects current EPO practice, and if you prosecute patent applications before the EPO you need to be able to understand this otherwise you are doing a bad service to your client.
Basically, what you just wrote is that a compression algorithm is technical if it is applied to an image and it is not technical if it is applied to text.
The image would be a representation of reality. For example taking an X-ray picture or compressing video. Then you are manipulating (representations of) light rays or electro- magnetic signals. That's technical.
I should clarify that to make it clear that "text" means the contents of the text. The decision in question was about making text more readable/understandable by replacing difficult words with easy ones. An algorithm to make ASCII characters from a scanned image would IMO be statutory because it is technical.
Sorry, no that is not what I meant. I didn't really think that you are a pro-software-patent person. You might be, but you never said that, so I certainly don't assume it. You could just be playing devil's advocate, and it would be all the same for me :)
Ok. I am not sure whether I would be "pro-software-patent". I think I'm somewhere in the middle, because I believe a device with new behavior should be patentable even if the behavior is caused by software - as long as the device is technical and the new behavior is novel and nonobvious. New nontechnical behavior is by definition obvious.
I believe that programs by themselves should not be statutory, and the making & distributing of programs should not be an infringement. But selling devices with the program loaded in it should be an infringement. Otherwise it is impossible to do innovation in fields like CE, because today almost everything is realized with software. Rendering movies on a TV with higher quality (100Hz, natural motion, etc) requires a lot of investments, and such innovation should be encouraged.
However, I hope you are against software patents, and that you help us to fight them, because they are harmful for our economy and personal freedom of expression.
I think I disagree with your definition of 'software patent' because, as a computer scientist, I am unable to think of any reasonable definition of 'software'. It is function that matters. Implementation of the function is irrelevant.
Kind regards,
Arnoud Engelfriet
On Sun, Dec 15, 2002 at 02:00:05PM +0100, Arnoud Galactus Engelfriet wrote:
No, the EPO seems to think that even a program by itself can be patented. I believe "program on carrier" is not statutory subject matter.
It might be what they think, I couldn't tell, as I can't read minds. But I would be surprised if they would acknowledge this in public. It's certainly what they do, and it wouldn't be any bit better by redefining the term "technical effect", as you seem to think is a solution.
It is the EPO which invented the term "technical effect" to justify granting software patents, but the distinction between "a program as such" and "a program with a technical effect" is not a distinction you can derive from reading the law.
A program as such is an example of a thing without a technical effect. Hence it is unpatentable.
This doesn't make sense any way I look at it.
I say that either the following two is true:
1. Every program has a technical effect if it is run on hardware.
2. Every technical effect is just a direct consequence of an abstract idea if it is applied to hardware.
If the first is true, then all programs are patentable, despite your claim that a technical effect requirement would split programs in two classes.
If the latter is true, no program should be patentable because there is no technical invention.
Keep in mind there is a difference between "invention" and "having an inventive step" in the EPC.
Can you remind me of that difference?
Article 52(1) says
European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
When I say invention in this discussion, I usually mean invention as in this definition, which means that it always includes an inventive step (is new, technical, and industrially applicable).
can be at least partially realized using software.
Can you give an example? I think it is crucial to find out if the invention is in the software or in the hardware.
I think it is totally irrelevant whether the inventive aspect is in software or hardware.
Then indeed you are very much in line with the EPO, and clearly against the written law. Which explains the whole discussion.
If it is just some new hardware invention with some software (inventive or conventional) slabbed to it, I have no concerns. If it is software with just some "technical vocabulary" slabbed to it, to make it look more technical, I have a fundamental objection.
Let's say I have a car engine in which fuel injection is regulated by a valve coupled to a sensor. This way the car engine operates with a certain efficiency, because the signal from the sensor can open and close the valve. The inventive aspect is in the use of the valve and sensor. Is this an invention? I would say yes. And if the prior art does not teach using valves and sensors to regulate fuel injection, then the invention is not obvious and hence involves an inventive step.
This is way too vague to say if it is an invention or not. But if there is something new to be learned about the forces of nature in the valves, or the mechanics of the sensor, I will pay fair and say, yeah, there is an invention according to 52(1). For the sake of argument anyway.
Now, I come up with an additional invention. I am going to couple a programmed chip to the valve. The chip allows a much more precise evaluation of the output of the sensor so the valve can be opened and closed to allow a much more efficient fuel intake. Assuming the invention from the previous paragraph is the prior art, the inventive aspect would be in the use of the programmed chip. The chip is known by itself. Is this an invention? I would say yes, because just like the previous invention it provides efficient fuel intake.
How would you evaluate these patent applications?
The latter is clearly not an invention according to 52(1), if it is just a plain chip and the sensor and valve etc are already known (for example, because they are covered in different patents). The chip logic (see, it is chip _logic_) is abstract: It is designed at the drawing board, there is no experimentation involved. In fact, it is downright irrelevant if the chip controls fuel, coconuts, or bits and bytes. In fact, I am sure that the programmer which programs the chip hardly thinks about fuel, valves, sensors and little wiggling pieces of steel and gas. I am positively sure that the chip designer thinks in terms of input and output data, in terms of math, in terms of numbers and abstract, logical ideas. He does not have to worry about the forces of nature at all.
So, as long as there is no invention in the mechanical glue between the chip and the sensor, or the chip and the valve, then there is no invention here that deserves or needs the protection of a patent. In fact, numerous studies show that patents of this sort are harmful to our economy, to personal freedom, and slow down the incremental development of the software industry.
I know that it is current practice to allow such patents. And I know that 1978, such patent claims have been denied. The law is clear on the 1978 side.
Computer programming is not a field of technology. Just as math isn't.
Programming is applied mathematics, just like engineering is applied physics. Applied sciences are patentable subject matter.
Irregardless of whether programming is applied math, I have never heard before that all applied sciences are patentable subject matter. I think you just made that up.
It's what I believe is the realm of patent protection.
Ok. We will just have to accept that you believe that. Again, I beg you to reconsider, because your position is harmful to our economy. We have enough people without labour, thank you very much. Or we could all become patent attorneys instead, but then there is no one left to make inventions, of course. But OTOH, we don't need to worry anymore, as we will just patent everything.
Basically, what you just wrote is that a compression algorithm is technical if it is applied to an image and it is not technical if it is applied to text.
The image would be a representation of reality. For example taking an X-ray picture or compressing video. Then you are manipulating (representations of) light rays or electro- magnetic signals. That's technical.
So a digital image of an x-ray is technical, but a digital image of an elephant is what, animal? And a digital image of a nun feeding a hungry child is human? And, sorry, but I can not resist, a digital image of the excrements of a male cow is?
I should clarify that to make it clear that "text" means the contents of the text. The decision in question was about making text more readable/understandable by replacing difficult words with easy ones. An algorithm to make ASCII characters from a scanned image would IMO be statutory because it is technical.
You are makeing it clearer than I could that in consequence everything can be considered technical and patentable. This is exactly what the BGH 1978 foresaw and which was supposed to be prevented by making it required that something new is learned about the forces of nature for something to be a technical invention.
The EPA, and you, in your argumentation, is stretching and bending the term technical until it becomes meaningless, to make everything patentable (you might not want to make everything patentable, but as a consequence it will be, if you want it or not: You can not just make a small part of the abstract world patentable - if a small part is patentable, everything is).
So, you will have to make a decision: Do you want to make everything patentable or not? You might say that you don't want everything to be patentable, but you can not say you only want to make things patentable that have a "technical effect", because the technical effect will just be used as an excuse to patent virtually everything. This happens already, and you realize that, too. But you have not said how you want to stop the EPO from granting patents on things you don't consider to have a technical effect, but the EPO does.
Ok. I am not sure whether I would be "pro-software-patent". I think I'm somewhere in the middle, because I believe a device with new behavior should be patentable even if the behavior is caused by software - as long as the device is technical and the new behavior is novel and nonobvious. New nontechnical behavior is by definition obvious.
There is no middle. You will have to take a position on either side, if you want or not. By supporting patents on programs "with a technical effect", you are supporting the move to allow patents on all programs, algorithms, all logic patents and patents on business methods. You said this is not what you want, but this is what will happen. After the "technical effect" idea, as weird as it is, is through, nobody will ask you again about what you thought it might mean.
However, I hope you are against software patents, and that you help us to fight them, because they are harmful for our economy and personal freedom of expression.
I think I disagree with your definition of 'software patent' because, as a computer scientist, I am unable to think of any reasonable definition of 'software'. It is function that matters. Implementation of the function is irrelevant.
If you don't like software patent, say "logic patent". It means the same thing here.
Thanks, Marcus
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 02:00:05PM +0100, Arnoud Galactus Engelfriet wrote:
No, the EPO seems to think that even a program by itself can be patented. I believe "program on carrier" is not statutory subject matter.
It might be what they think, I couldn't tell, as I can't read minds.
Neither can I, but I can read BoA decisions, and that's what they say in there. T 1173/97 explicitly decides programs on a carrier are statutory if they can be shown to exhibit a further technical effect. And this is also what the Guidelines say.
I say that either the following two is true:
- Every program has a technical effect if it is run on hardware.
This is true. That's why the EPO came up with the "further technical effect". Maybe we should define "technical effect" as "the effect you'd get if you built the software in equivalent hardware instead". Then it does not matter anymore how the invention is realized, and you simply look what it does and what that achieves.
Article 52(1) says
European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
When I say invention in this discussion, I usually mean invention as in this definition, which means that it always includes an inventive step (is new, technical, and industrially applicable).
Ok. So if I have something that is an obvious modification of an existing device, you would say it is not an invention. Right?
This may be the cause of a lot of confusion, because in my opinion it is an invention, although an obvious one. That's how I read the EPC: "patents shall be granted for inventions which ... involve an inventive step". This admits there are inventions which do not involve an inventive step.
I think it is totally irrelevant whether the inventive aspect is in software or hardware.
Then indeed you are very much in line with the EPO, and clearly against the written law. Which explains the whole discussion.
I disagree with your interpretation of the EPC, and I disagree with your observation that my interpretation is "clearly" wrong. It's a different interpretation, and one which leads to results you don't like, but that does not automatically make me "clearly" wrong.
Let's say I have a car engine in which fuel injection is regulated by a valve coupled to a sensor. This way the car engine operates with a certain efficiency, because the signal from the sensor can open and close the valve. The inventive aspect is in the use of the valve and sensor. Is this an invention? I would say yes. And if the prior art does not teach using valves and sensors to regulate fuel injection, then the invention is not obvious and hence involves an inventive step.
This is way too vague to say if it is an invention or not. But if there is something new to be learned about the forces of nature in the valves, or the mechanics of the sensor, I will pay fair and say, yeah, there is an invention according to 52(1). For the sake of argument anyway.
Ok, so you combine the evaluation of inventive step and the determination whether it is an invention. Is it possible that the mechanics of sensor and valve do teach us something new about forces of nature, but their application in a fuel injection system is obvious?
So, as long as there is no invention in the mechanical glue between the chip and the sensor, or the chip and the valve, then there is no invention here that deserves or needs the protection of a patent.
Your approach is clear, although I find it interesting to see that apparently it does not matter what forces are manipulated or what this manipulation achieves. If the manipulation occurs in software, it's not an invention, if it occurs in hardware it is an invention.
I know that it is current practice to allow such patents. And I know that 1978, such patent claims have been denied. The law is clear on the 1978 side.
It is current practice to allow such patents. Back in 1978, such claims would have been denied. But today we have a much more fair and consistent interpretation of the law.
Should we keep on repeating our assertions of how the law is supposed to be interpreted? I don't think either of us has any arguments the other is prepared to accept, because we're coming from totally different starting points.
The image would be a representation of reality. For example taking an X-ray picture or compressing video. Then you are manipulating (representations of) light rays or electro- magnetic signals. That's technical.
So a digital image of an x-ray is technical, but a digital image of an elephant is what, animal?
They're technical data if it can be shown the machine operates in a technically different way based on it. A digital photo camera is an invention, is it not?
And a digital image of a nun feeding a hungry child is human? And, sorry, but I can not resist, a digital image of the excrements of a male cow is?
They're all data. In a face recognition system, the data would be processed to make the system e.g. grant access or something, and then the system operates influenced by the data. That would make system+data technical.
realize that, too. But you have not said how you want to stop the EPO from granting patents on things you don't consider to have a technical effect, but the EPO does.
How can I possibly do that? In fact, how would you want to stop the EPO from granting patents on things you think do not involve novel application of forces of nature, but they do? The Japanese patent office apparently can find reasoning that computer programs are technical ideas by which a law of nature is utilized. If the Japanese Supreme Court affirms that, what can you do?
I think I disagree with your definition of 'software patent' because, as a computer scientist, I am unable to think of any reasonable definition of 'software'. It is function that matters. Implementation of the function is irrelevant.
If you don't like software patent, say "logic patent". It means the same thing here.
Fine. I'll use "computer-implemented invention" to refer to things that use software, and "logic patent" for things that involve no (further) technical effect.
Arnoud
On Sun, Dec 15, 2002 at 03:57:18PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus Brinkmann wrote:
I say that either the following two is true:
- Every program has a technical effect if it is run on hardware.
This is true. That's why the EPO came up with the "further technical effect". Maybe we should define "technical effect" as "the effect you'd get if you built the software in equivalent hardware instead". Then it does not matter anymore how the invention is realized, and you simply look what it does and what that achieves.
I have no problem with people patenting hardware that does a similar job to some program. I have a problem with people patenting software, irregardless of what it does.
Article 52(1) says
European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
When I say invention in this discussion, I usually mean invention as in this definition, which means that it always includes an inventive step (is new, technical, and industrially applicable).
Ok. So if I have something that is an obvious modification of an existing device, you would say it is not an invention. Right?
I might say it is an invention, but not an invention in the sense of Art 52(1).
This may be the cause of a lot of confusion, because in my opinion it is an invention, although an obvious one. That's how I read the EPC: "patents shall be granted for inventions which ... involve an inventive step". This admits there are inventions which do not involve an inventive step.
I realized that you use the term invention in the general sense, and not in the specific sense of the patent law. Otherwise a sentence like "an invention must have an inventive step" doesn't make much sense at all (it would be completely redundant). I don't think any fundamental disagreement between you and me in this thread is explainable by that difference of word usage.
I think it is totally irrelevant whether the inventive aspect is in software or hardware.
Then indeed you are very much in line with the EPO, and clearly against the written law. Which explains the whole discussion.
I disagree with your interpretation of the EPC, and I disagree with your observation that my interpretation is "clearly" wrong. It's a different interpretation, and one which leads to results you don't like, but that does not automatically make me "clearly" wrong.
There is not much room for interpretation. If the EPO wouldn't be painfully aware of the fact that its current practice is against the current law, it would not pressure so much for having the law changed to adapt to current practice.
Let's say I have a car engine in which fuel injection is regulated by a valve coupled to a sensor. This way the car engine operates with a certain efficiency, because the signal from the sensor can open and close the valve. The inventive aspect is in the use of the valve and sensor. Is this an invention? I would say yes. And if the prior art does not teach using valves and sensors to regulate fuel injection, then the invention is not obvious and hence involves an inventive step.
This is way too vague to say if it is an invention or not. But if there is something new to be learned about the forces of nature in the valves, or the mechanics of the sensor, I will pay fair and say, yeah, there is an invention according to 52(1). For the sake of argument anyway.
Ok, so you combine the evaluation of inventive step and the determination whether it is an invention. Is it possible that the mechanics of sensor and valve do teach us something new about forces of nature, but their application in a fuel injection system is obvious?
As long as we learn something new about the forces of nature, and it is industrially applicable, and it is not obvious, it is a technical invention. Irregardless of where it can be applied obviously or not (fuel injection, soft drink injection, or whatever :)
So, as long as there is no invention in the mechanical glue between the chip and the sensor, or the chip and the valve, then there is no invention here that deserves or needs the protection of a patent.
Your approach is clear, although I find it interesting to see that apparently it does not matter what forces are manipulated or what this manipulation achieves. If the manipulation occurs in software, it's not an invention, if it occurs in hardware it is an invention.
Forces of nature are not directly manipulated in software. Never. This is downright impossible, as software is not something that exists as a motor exists. In its purest form it only exists in the world of ideas, and in the real world in only exists as a representation (as a program text, or as bits and bytes on a volatile or permanent memory). There is always a technical device that receives electrical input (like a motor), that does the mainpulation.
This is the technical border. If you extend patentability beyond this border, you will always have the problem that everything becomes patentable in consequence (and the self-restriction to things with "further technical effect" is arbitrary and can be defined by the EPO at will, as it really includes everything).
I know that it is current practice to allow such patents. And I know that 1978, such patent claims have been denied. The law is clear on the 1978 side.
It is current practice to allow such patents. Back in 1978, such claims would have been denied. But today we have a much more fair and consistent interpretation of the law.
Should we keep on repeating our assertions of how the law is supposed to be interpreted? I don't think either of us has any arguments the other is prepared to accept, because we're coming from totally different starting points.
The problem is that you argue in terms that are completely arbitrary and can be bended at will. It is clear to me that it is always hard to counter-argue such situations with ration and well definedness, simply because there is no way to counter a contradiction except by two things:
1. I can show that you can follow everything from a contradiction (ie, everything is patentable in your interpretation) 2. I can offer a different interpretation that really is fair and consistent in that it offers a real limitation to the patent system, and I can show that this interpretation is much better suited for our economic world.
The two together: the logical aspect, and the economic aspect, are enough to make any discussion about what "technical effect" might mean downright irrelevant. This is why at the start of this thread I rejected the trickery terms and said that they are a trap: They are designed to get lost in arbitrariness and ambiguity. I continued the discussion anyway to mainly shape my own argumentation techniques, but also because I think that such positions can not be left in the room without showing their fallacy.
The image would be a representation of reality. For example taking an X-ray picture or compressing video. Then you are manipulating (representations of) light rays or electro- magnetic signals. That's technical.
So a digital image of an x-ray is technical, but a digital image of an elephant is what, animal?
They're technical data if it can be shown the machine operates in a technically different way based on it.
This is potentially true for every data. Is this really what you want?
A digital photo camera is an invention, is it not?
It can be an invention. The pictures it takes can not.
And a digital image of a nun feeding a hungry child is human? And, sorry, but I can not resist, a digital image of the excrements of a male cow is?
They're all data. In a face recognition system, the data would be processed to make the system e.g. grant access or something, and then the system operates influenced by the data. That would make system+data technical.
You avoid the question: Can data be technical? Above you say yes. You even offer a definition that makes all data technical, and thus patentable. A direct consequence of what you say is that a picture of an elephant is patentable. A picture that exhibits a "further technical effect" on a machine would be patentable.
You are showing us a world where music, art, pictures, text, literally everything can be patented. It is a world of horror.
realize that, too. But you have not said how you want to stop the EPO from granting patents on things you don't consider to have a technical effect, but the EPO does.
How can I possibly do that? In fact, how would you want to stop the EPO from granting patents on things you think do not involve novel application of forces of nature, but they do?
By reinforcing a law that clearly defines what is patentable and what not, and by better controlling the patent office that it does what it is allowed to do and not mroe.
The Japanese patent office apparently can find reasoning that computer programs are technical ideas by which a law of nature is utilized. If the Japanese Supreme Court affirms that, what can you do?
If this happens, it is the politician's call to make the law clearer to the patent office.
I think I disagree with your definition of 'software patent' because, as a computer scientist, I am unable to think of any reasonable definition of 'software'. It is function that matters. Implementation of the function is irrelevant.
If you don't like software patent, say "logic patent". It means the same thing here.
Fine. I'll use "computer-implemented invention" to refer to things that use software, and "logic patent" for things that involve no (further) technical effect.
There is no difference.
Thanks, Marcus
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 03:57:18PM +0100, Arnoud Galactus Engelfriet wrote:
This is true. That's why the EPO came up with the "further technical effect". Maybe we should define "technical effect" as "the effect you'd get if you built the software in equivalent hardware instead". Then it does not matter anymore how the invention is realized, and you simply look what it does and what that achieves.
I have no problem with people patenting hardware that does a similar job to some program. I have a problem with people patenting software, irregardless of what it does.
Ok. And now I have this patent on a hardware implementation, and you make a device that does the same thing, by using a general purpose processor and a ROM with software. The software makes the device do the same thing as claimed in my patent. Should I be allowed to sue you when you sell the device?
Ok. So if I have something that is an obvious modification of an existing device, you would say it is not an invention. Right?
I might say it is an invention, but not an invention in the sense of Art 52(1).
Ok. I say it is an invention in the sense of Article 52(1), but one which lacks an inventive step.
This may be the cause of a lot of confusion, because in my opinion it is an invention, although an obvious one. That's how I read the EPC: "patents shall be granted for inventions which ... involve an inventive step". This admits there are inventions which do not involve an inventive step.
I realized that you use the term invention in the general sense, and not in the specific sense of the patent law. Otherwise a sentence like "an invention must have an inventive step" doesn't make much sense at all (it would be completely redundant).
To me it's not redundant. An invention can be obvious, making it lack an inventive step. An invention can be known. An invention may be incapable of industrial application. And there are things that are novel, nonobvious and capable of industrial application yet are not inventions. There are four requirements before you get a European patent.
Maybe I should start saying "statutory subject matter" instead of "invention".
I don't think any fundamental disagreement between you and me in this thread is explainable by that difference of word usage.
Except in that you say "this is not inventive hence it is no invention". To me that doesn't follow. If I file an application today for the lightbulb, the claim will be rejected for novelty, but not for "not being an invention".
I disagree with your interpretation of the EPC, and I disagree with your observation that my interpretation is "clearly" wrong. It's a different interpretation, and one which leads to results you don't like, but that does not automatically make me "clearly" wrong.
There is not much room for interpretation. If the EPO wouldn't be painfully aware of the fact that its current practice is against the current law, it would not pressure so much for having the law changed to adapt to current practice.
But the Directive aims to harmonize Member State law with the EPO's current interpretation, not to modify the EPC.
Forces of nature are not directly manipulated in software. Never. This is downright impossible, as software is not something that exists as a motor exists. In its purest form it only exists in the world of ideas, and in the real world in only exists as a representation (as a program text, or as bits and bytes on a volatile or permanent memory). There is always a technical device that receives electrical input (like a motor), that does the mainpulation.
Ok, and then of course I will come with the technical device that does the manipulation using software. The invention^W statutory subject matter now is device+input+software, not just the software. Is this patentable if nonobvious?
Should we keep on repeating our assertions of how the law is supposed to be interpreted? I don't think either of us has any arguments the other is prepared to accept, because we're coming from totally different starting points.
The problem is that you argue in terms that are completely arbitrary and can be bended at will.
Whereas I think your position is very hard to apply in practice, and you seem to put all requirements together. Furthermore, it seems to lead to very undesirable results in practice, since almost nothing is patentable under your rules. Almost all teachings about forces of nature are known, so there is rarely anything new to learn anymore.
It is clear to me that it is always hard to counter-argue such situations with ration and well definedness, simply because there is no way to counter a contradiction except by two things:
- I can show that you can follow everything from a contradiction (ie, everything is patentable in your interpretation)
- I can offer a different interpretation that really is fair and consistent in that it offers a real limitation to the patent system, and I can show that this interpretation is much better suited for our economic world.
Could you please show that it is better suited? I'll grant you that it may be better for the pure software world, but what will it do for the hardware people?
They're technical data if it can be shown the machine operates in a technically different way based on it.
This is potentially true for every data. Is this really what you want?
If a machine can operate differently when it's shown a different picture, then the differently operating machine should be statutory subject matter.
A digital photo camera is an invention, is it not?
It can be an invention. The pictures it takes can not.
Correct. That's what I am trying to say. The camera becomes statutory because it processes physical data (light rays). Unfortunately I now realize that I am confusing the terms "technical data" and "physical data". :(
They're all data. In a face recognition system, the data would be processed to make the system e.g. grant access or something, and then the system operates influenced by the data. That would make system+data technical.
You avoid the question: Can data be technical? Above you say yes.
What I originally said is that processing physical data is technical. So a method of processing EM signals to make a visual picture (in a TV) is technical and hence statutory, because it is processing physical data.
A TV by itself is technical and hence statutory as well, because it is arranged for processing physical data.
This does not make the EM signals themselves patentable.
A device can be built to operate differently on different physical signals. For example, it might be able to extract Teletext data (closed captioning data) from a TV signal. That makes the device novel with respect to the above TV, because that TV cannot extract this data.
This still does not make the TV signal with Teletext lines patentable.
Sorry for the confusion. It's a bit difficult, because here I differ somewhat from current EPO practice.
You even offer a definition that makes all data technical, and thus patentable. A direct consequence of what you say is that a picture of an elephant is patentable. A picture that exhibits a "further technical effect" on a machine would be patentable.
In a security system, recognition of an elephant approaching the gate might be the trigger for a different alarm than when a human approaches. In such a system, the fact that you've recognized an elephant is a technical feature, yes.
This does not make the picture by itself patentable.
An interesting question: suppose I have an umbrella with a certain pattern on it. This pattern looks purely aesthetic, so there is nothing inventive. But if I can show that the pattern actually provides optimal light distribution to the person carrying the umbrella, so you get a nice tan even when it rains? Then arguably I'm even manipulating forces of nature by the way my umbrella's pattern redistributes light rays.
Kind regards,
Arnoud Engelfriet
On Mon, Dec 16, 2002 at 05:56:09PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 03:57:18PM +0100, Arnoud Galactus Engelfriet wrote:
This is true. That's why the EPO came up with the "further technical effect". Maybe we should define "technical effect" as "the effect you'd get if you built the software in equivalent hardware instead". Then it does not matter anymore how the invention is realized, and you simply look what it does and what that achieves.
I have no problem with people patenting hardware that does a similar job to some program. I have a problem with people patenting software, irregardless of what it does.
Ok. And now I have this patent on a hardware implementation, and you make a device that does the same thing, by using a general purpose processor and a ROM with software. The software makes the device do the same thing as claimed in my patent. Should I be allowed to sue you when you sell the device?
You are always allowed to sue someone, for whatever reason you can possibly think of.
But I don't think you should win the case :)
BTW, it can not "do the same thing". It might do something that has the same final result according to some evaluation of the things that happen. But it is certainly an entirely different process. (The software is deterministic, while the hardware is using the forces of nature in a controlled way).
I disagree with your interpretation of the EPC, and I disagree with your observation that my interpretation is "clearly" wrong. It's a different interpretation, and one which leads to results you don't like, but that does not automatically make me "clearly" wrong.
There is not much room for interpretation. If the EPO wouldn't be painfully aware of the fact that its current practice is against the current law, it would not pressure so much for having the law changed to adapt to current practice.
But the Directive aims to harmonize Member State law with the EPO's current interpretation, not to modify the EPC.
Exactly. This is why the Directive must be rejected. It is shifting the responsibility for the bad current practice of the EPO to the politicians, who should not fall into this trap.
Forces of nature are not directly manipulated in software. Never. This is downright impossible, as software is not something that exists as a motor exists. In its purest form it only exists in the world of ideas, and in the real world in only exists as a representation (as a program text, or as bits and bytes on a volatile or permanent memory). There is always a technical device that receives electrical input (like a motor), that does the mainpulation.
Ok, and then of course I will come with the technical device that does the manipulation using software. The invention^W statutory subject matter now is device+input+software, not just the software. Is this patentable if nonobvious?
The device might be patentable. Data input and software not.
Should we keep on repeating our assertions of how the law is supposed to be interpreted? I don't think either of us has any arguments the other is prepared to accept, because we're coming from totally different starting points.
The problem is that you argue in terms that are completely arbitrary and can be bended at will.
Whereas I think your position is very hard to apply in practice, and you seem to put all requirements together. Furthermore, it seems to lead to very undesirable results in practice, since almost nothing is patentable under your rules. Almost all teachings about forces of nature are known, so there is rarely anything new to learn anymore.
"Almost all teachings about forces of nature are known"? I heard this before. Right, this was said by the teacher of Max Planck. The teacher recommended to Planck to NOT study physics, because "almost everything is already known". This is simply wrong. Just as your predicition of the results in practice. All economic studies showed that allowing software patents is harmful to our economy.
My position is quite easy to apply in practice. Patent offices have done so since they were created (they extended their position to also grant patents on other things, but that doesn't mean that they forgot how to do it correctly).
It is clear to me that it is always hard to counter-argue such situations with ration and well definedness, simply because there is no way to counter a contradiction except by two things:
- I can show that you can follow everything from a contradiction (ie, everything is patentable in your interpretation)
- I can offer a different interpretation that really is fair and consistent in that it offers a real limitation to the patent system, and I can show that this interpretation is much better suited for our economic world.
Could you please show that it is better suited? I'll grant you that it may be better for the pure software world, but what will it do for the hardware people?
Hardware people build hardware. If they build in hardware what is better done in software, they should build something else.
Usually you build hardware because software can't do the job. For example, try to close a bottle with software. You can't, you need a small metal plate and form it around the bottle opening.
Patents are not there to protect you against other people finding different solutions to the problem you solved. Patents are there to protect you from someone using the same solution as you found, so you can publish your solution instead keeping it a secret. Sorry, but patents don't give you a monopoly on solving a problem, just on solving it in one special way.
I am distressed that you seem to suggest people should get monopolies on solving a problem. That would be very, very harmful to our society. In fact, it would block innovation radically.
They're all data. In a face recognition system, the data would be processed to make the system e.g. grant access or something, and then the system operates influenced by the data. That would make system+data technical.
You avoid the question: Can data be technical? Above you say yes.
What I originally said is that processing physical data is technical. So a method of processing EM signals to make a visual picture (in a TV) is technical and hence statutory, because it is processing physical data.
It's not processing data at all. It is using the forces of natures (magnetic fields) in a controlled manner to solve a problem.
That data is encoded in the light beams is completely orthogonal to that. You could get a patent to move an EM beam in a controlled way just like a TV does irregardless of whether there is data encoded in the beam or not.
A device can be built to operate differently on different physical signals. For example, it might be able to extract Teletext data (closed captioning data) from a TV signal. That makes the device novel with respect to the above TV, because that TV cannot extract this data.
This still does not make the TV signal with Teletext lines patentable.
Ok. But I think that a teletext extractor is not patentable just because it processes EM beams which have different data encoded. It needs to be new and inventive in its own right (ie, use some new way to controll EM beams) to be patentable.
An interesting question: suppose I have an umbrella with a certain pattern on it. This pattern looks purely aesthetic, so there is nothing inventive. But if I can show that the pattern actually provides optimal light distribution to the person carrying the umbrella, so you get a nice tan even when it rains? Then arguably I'm even manipulating forces of nature by the way my umbrella's pattern redistributes light rays.
There are examples where organizing lenses/holes in a specific geometric pattern related to prime numbers produces an image that can be computationally converted to the original image (which is of higher quality as the one lense/hole case). This is an advanced version of the pinhole camera, if I recall correctly.
Still, the pattern is caclulated mathematically, there is nothing new we can learn about the forces of nature here, if the way the light beam is reflected and scattered is well known. Then you can draft and design that pattern in front of the computer in your lab, without ever seeing the light of day (pun intended ;)
If you find a new material that scatters light in a new way, you can surely patent the process to create or form that material.
Thanks, Marcus
On 15 Dec 2002 at 14:46, Marcus Brinkmann wrote:
Ok. I am not sure whether I would be "pro-software-patent". I think I'm somewhere in the middle, because I believe a device with new behavior should be patentable even if the behavior is caused by software - as long as the device is technical and the new behavior is novel and nonobvious. New nontechnical behavior is by definition obvious.
There is no middle. You will have to take a position on either side, if you want or not. By supporting patents on programs "with a technical effect", you are supporting the move to allow patents on all programs, algorithms, all logic patents and patents on business methods. You said this is not what you want, but this is what will happen. After the "technical effect" idea, as weird as it is, is through, nobody will ask you again about what you thought it might mean.
I think it very unfair to say there is no middle. Of course there is a middle, I occupy one myself. Why is it people have to see things in black and white?
I personally feel Arnoud being an intelligent guy has noticed that software patents are severely flawed. Quite likely he doesn't quite know why, but he's open-minded enough to admit his idiosyncracies on the matter. Instead of saying "either you're with us or against us", you should be pointing out the logic errors in his argument in a constructive manner.
If you don't like software patent, say "logic patent". It means the same thing here.
Software is not logic. I have said this many times but instead of people challenging me on this, they appear to be pretending I'm not saying it :(
Cheers, Niall