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 think this is only a matter of claim wording. You are basically saying, to use an analogy from the FFII, I think,
3 EUR + 3 EUR = 6 EUR
is not patentable, because it handles no technical data
3 l of fuel + 3 l of fuel = 6 l of fuel
is patentable because it is technical. This is impossible for me as a programmer to understand since the exact same program perfoms both functions. If you prohibit (monopolize) one you prohibit the other, and anything that solves the problem would be usable for fuel and therefore infringe.
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.
The law they pretend to harmonize covers the same matter and territory (or subset of it) than the law the EPO should be following. If the EPO was following the EPC, there would be no need to wellcome harmonization of EU law with the EPC.
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.
Sweetman, a british SME manager asked at the EuroParl for an example of a program that could not be constrained to have a technical effect under EPO doctrine because he had tried for 6 months to understand it and did not see one, and nobody answered, including 2 EPO officials.
The cases you present are not of unpatentable programs, I would say, but of applications worded in the wrong way for the EPO to grant the patent. Another wording for the same thign could be patentable.
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?
My interpretation of the EPC is not the only possible, but until someone shows me a _consistent_ intepretation of the EPC that justifies EPO practice, I am entitled to belive it is unjustified by the EPC.
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.
It violates the EPC letter. THey follow the EPC where it says they are to decide, but don't follow it where it says what is patentable.
"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.
I do. Thank you.
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
This sounds absurd to me. A patent prohibits use of an "invention". The main use of software is by programming a machine with it. If you can't patent the program but can patent any machine programmed to use it, then nobody can use a machine programmed with the program, so nobody can use the program, so the effect is the same as patenting the program, except for marginal uses (as an expressive work, or as mere transmitted ifnormation).
If waht you propose is not patenting _any_ machine programmed with the software, then it is only fair to apply novelty and inventive step to the machine, not the software. So the software should make no difference in whether a machine can be patented or not, and patenting a general computer programmed such that so and so should not be accepted.
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.
But if the only innovation is in the software, the machine should not be patentable. I have no problem patenting analogical sound filters but once you discover you can apply a Fourier Trnasform and do that in a DSP, you have already solved a whole range of problems. Maybe the DAC or ADC converter could be patented, but the math and logic you then apply to the signal is no different from business logic, and should not merit a patent. Programming a filter in a DSP is just the normal use of the DSP, and therefore not inventive.
So what is important is the teaching in the patent.
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?
I was comparing risk of opposition with risks of invalidating in a court when sued with respect to license agreements. I wasn't comparing with the option of keeping silent.
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 meant including the attorney fees.
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.
And that's why this system rules out SMEs from intellectual activity with computers.
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.
Possibly. Sorry if I insist too much.
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.
My argument is the President can not decide tomorrow that the EPO is going to grant patent of sexual intercourse positions. What the president decides must respect the EPC. Since the guidelines of 1978 respected the same EPC as we have now, reinstating them would be consistent with the EPC. More consistent than current guidelines.
And I think it is important to have the EPO practice, the EPC, the EU, and national laws in the same line. Now it is no because the EPO does not follow the EPC. The solution if changing what the EPO does, not the rest.
xdrudis@tinet.org wrote:
You are basically saying, to use an analogy from the FFII, I think,
3 EUR + 3 EUR = 6 EUR
is not patentable, because it handles no technical data
3 l of fuel + 3 l of fuel = 6 l of fuel
is patentable because it is technical.
Not really, but it comes close. The invention would be something like reducing the amount of fuel in a motor, which is technical, and this reduction is achieved by having a program compute the amounts in two separate fuel tanks or something.
This is impossible for me as a programmer to understand since the exact same program perfoms both functions. If you prohibit (monopolize) one you prohibit the other, and anything that solves the problem would be usable for fuel and therefore infringe.
The fact that it's done by a program is irrelevant. It would be the motor with its control means that would be the invention. And you can't prohibit what's outside the claims, so using the same solution for money reduction is not infringement.
The law they pretend to harmonize covers the same matter and territory (or subset of it) than the law the EPO should be following. If the EPO was following the EPC, there would be no need to wellcome harmonization of EU law with the EPC.
The EPO thinks it's following the EPC, but not all national courts and laws agree with the EPO's thinking. The EU believes the EPO is doing the right thing and is now trying to harmonize the laws of the Member States.
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.
Sweetman, a british SME manager asked at the EuroParl for an example of a program that could not be constrained to have a technical effect under EPO doctrine because he had tried for 6 months to understand it and did not see one, and nobody answered, including 2 EPO officials.
See EPO BoA decision T 931/95, the pension benefits case. http://legal.european-patent-office.org/dg3/biblio/t950931ex1.htm Even though the method claim used software, it was not an invention.
The cases you present are not of unpatentable programs, I would say, but of applications worded in the wrong way for the EPO to grant the patent. Another wording for the same thign could be patentable.
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
My interpretation of the EPC is not the only possible, but until someone shows me a _consistent_ intepretation of the EPC that justifies EPO practice, I am entitled to belive it is unjustified by the EPC.
EPO practice is to say that if an invention as a whole exhibits a technical effect, it is patentable (although you must also check novelty and inventive step). It is irrelevant whether software is part of the claimed invention. However, because then all attorneys will claim "software interacts with hardware and so it's always technical", they came up with the further technical effect that must be more than ordinary interaction.
Basically, if you ignore the fact that a step or feature is realized with software, and you still have a technical effect then you have a patentable invention.
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.
It violates the EPC letter. THey follow the EPC where it says they are to decide, but don't follow it where it says what is patentable.
They seem to think it conforms to the letter.
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
This sounds absurd to me. A patent prohibits use of an "invention". The main use of software is by programming a machine with it.
Yes, but the patent would prohibit the using or selling of the programmed machine. Not the act of programming.
If you can't patent the program but can patent any machine programmed to use it, then nobody can use a machine programmed with the program, so nobody can use the program, so the effect is the same as patenting the program, except for marginal uses (as an expressive work, or as mere transmitted ifnormation).
Exactly. But since it was believed in 1973 that software is not a "thing" (just like a blueprint isn't a "thing"), they made it clear it could not as such be patented. Just like you can't patent a blueprint, but you can patent a machine built in accordance with the blueprint.
If waht you propose is not patenting _any_ machine programmed with the software, then it is only fair to apply novelty and inventive step to the machine, not the software.
The tests should be applied to the programmed machine, not the unprogrammed machine. The software *in the machine* makes the difference.
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.
But if the only innovation is in the software, the machine should not be patentable.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
I have no problem patenting analogical sound filters but once you discover you can apply a Fourier Trnasform and do that in a DSP, you have already solved a whole range of problems. Maybe the DAC or ADC converter could be patented, but the math and logic you then apply to the signal is no different from business logic, and should not merit a patent. Programming a filter in a DSP is just the normal use of the DSP, and therefore not inventive.
A particularly programmed DSP works differently from an ordinary DSP. Why is it an invention if the programming is done with hardware chips, but not if it is done with software?
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.
My argument is the President can not decide tomorrow that the EPO is going to grant patent of sexual intercourse positions.
No, but he can instruct examiners that such methods are to be examined in a particular way. Just like he did with business methods and software.
What the president decides must respect the EPC. Since the guidelines of 1978 respected the same EPC as we have now, reinstating them would be consistent with the EPC. More consistent than current guidelines.
Surely it is possible to update your guidelines if you have a new insight in how the EPC is to be interpreted? Furthermore, the prez has no choice. If the BoA says it's to be one thing, the examiners should adhere to that otherwise applicants are not treated fairly. And so the examiners should be instructed to do what the BoA said.
And I think it is important to have the EPO practice, the EPC, the EU, and national laws in the same line.
I agree.
Now it is no because the EPO does not follow the EPC. The solution if changing what the EPO does, not the rest.
That's one solution. Changing national laws so it follows the EPO's interpretation of the EPC is another. And it seems that's what the EU wants.
Arnoud
On Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet wrote:
The EPO thinks it's following the EPC, but not all national courts and laws agree with the EPO's thinking. The EU believes the EPO is doing the right thing and is now trying to harmonize the laws of the Member States.
I think this is misleading, because the EU is not something you can point the finger at. There are various commissions, groups and offices in the EU, and you need to be careful who you mean with such a statement. I don't think it is clear that everybody is in agreement with the EPO. I think it would be more correct that nobody really has made up their mind yet, or even given it too much thought. If you look at the proposal by the commission in february, september and november, you see three different proposals which are all full of loopholes.
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
If you thing of a program to be one thing, and an embedded device with some in-core program doing the same thing, and treat them differently under patent law, then that might be an acceptable compromise, although it would be very difficult to work out the details.
However, please consider two things: * First, claims will always be very broad, at least as broad as the attorney can make it. For example, the claim will talk about a client and a server, signals, etc.
* Second, the patents are harmful to our economy purely because they exist. It is almost impossible for anyone to really check all patents for possible conflicts while developing a software program, so there is no legal security. Furthermore, the threat to sue because of patent infringement can be enough to hinder economical success and progress in the software world. After all, how far reaching a claim really is will always be difficult to decide.
And please also realize what you just said. You said that everything will be patentable. Is this truely what you want?
[...]
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.
But if the only innovation is in the software, the machine should not be patentable.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
The thing is that an invention means that we learn something new about the forces of nature. If a machine consumes half the memory with program A rather than with program B, just because it is a logical consequence because the abstract properties of the program B are such that it requires less bits than program A, we have learned something about logic but nothing about nature.
Thus, it should not be patentable.
Now, you are right in that the EPOs action is the way you described it rather than me. However, I would hope that you also agree with me that how I said it is how the law requires it to be. Then at least you would acknowledge that the EPO is acting against the current law. This would still not decide what is the best law to have in the future, but at least we would get out of the need to have artifical constructs like "technical effect" and would get a chance to start to discuss what should be patentable without harming the economy, rather than what is legal today.
Thanks, Marcus
Marcus Brinkmann wrote:
On Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet wrote:
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
If you thing of a program to be one thing, and an embedded device with some in-core program doing the same thing, and treat them differently under patent law, then that might be an acceptable compromise, although it would be very difficult to work out the details.
Probably. You'd have to make it very clear that the program by itself is not covered by the patent.
And please also realize what you just said. You said that everything will be patentable. Is this truely what you want?
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
The thing is that an invention means that we learn something new about the forces of nature.
This I disagree with. I believe this is an outdated concept in patent law. How does it cover new medicines, for example?
Now, you are right in that the EPOs action is the way you described it rather than me. However, I would hope that you also agree with me that how I said it is how the law requires it to be.
I personally believe that all technical inventions should be patentable, and that it should not matter whether software is involved. And I also believe that the criterion should not be whether a novel controlled use of forces of nature is involved, but rather whether the invention as a whole exhibits a technical effect. Even if the effect is not novel, or does not learn you anything about a new use of natural forces.
Based on this, I do not really disagree with the EPO's current practice. They should not have allowed claims to programs on a carrier, because those claims do not cover a technical invention but rather an information structure.
It's interesting to note by the way that the Japan's patent act defines a patentable invention as a highly advanced creation of a technical idea utilizing a law of nature, and they allow claims to computer programs by themselves. So apparently in Japan creating a computer program uses a force of nature.
Kind regards,
Arnoud Engelfriet
On Sun, Dec 15, 2002 at 12:46:43PM +0100, Arnoud Galactus Engelfriet wrote:
And please also realize what you just said. You said that everything will be patentable. Is this truely what you want?
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
The problem is that the patentability of all pure mental tewchniques is a direct consequence of allowing any software patents, because it is not possible to draw the distinction you want to draw. The term "Technical effect" is without real meaning.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
The thing is that an invention means that we learn something new about the forces of nature.
This I disagree with. I believe this is an outdated concept in patent law. How does it cover new medicines, for example?
Patentability of pharma products and genes is another interesting discussion, but it is a discussion we should not have here.
Now, you are right in that the EPOs action is the way you described it rather than me. However, I would hope that you also agree with me that how I said it is how the law requires it to be.
I personally believe that all technical inventions should be patentable, and that it should not matter whether software is involved. And I also believe that the criterion should not be whether a novel controlled use of forces of nature is involved, but rather whether the invention as a whole exhibits a technical effect. Even if the effect is not novel, or does not learn you anything about a new use of natural forces.
You are repeating that you only want software with a "technical effect" should be patentable, but you keep ignoring that the term "technical effect" is just pure bullshit, to put it bluntly. There is no software without a "technical effect". So the consequence would be that all software is patentable.
And you said it yourself. You said you believe that every patent attorney can introduce a technical effect into a claim.
It's interesting to note by the way that the Japan's patent act defines a patentable invention as a highly advanced creation of a technical idea utilizing a law of nature, and they allow claims to computer programs by themselves. So apparently in Japan creating a computer program uses a force of nature.
I am not familiar with japanese law. I can not even read japanese, so I have no way at all to tell what their law says. However, I have heard that no law actually allows software or logic patents, and that it is just the respective patent offices making up the practice. In europe the first time governments seem to be willing to accept the responsibility of codifying logic patents into law, which should make the patent offices very happy, because that means the responsibility for the dramatic negative consequences will be within the politicians rather than the patent offices.
Thanks, Marcus
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 12:46:43PM +0100, Arnoud Galactus Engelfriet wrote:
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
The problem is that the patentability of all pure mental tewchniques is a direct consequence of allowing any software patents, because it is not possible to draw the distinction you want to draw. The term "Technical effect" is without real meaning.
It is impossible to give a clear definition of "technical", that is true. But it is also impossible to give a clear definition of many other legal terms, like "reasonable doubt", and most constitutional rights.
I personally believe that all technical inventions should be patentable, and that it should not matter whether software is involved. And I also believe that the criterion should not be whether a novel controlled use of forces of nature is involved, but rather whether the invention as a whole exhibits a technical effect. Even if the effect is not novel, or does not learn you anything about a new use of natural forces.
You are repeating that you only want software with a "technical effect" should be patentable, but you keep ignoring that the term "technical effect" is just pure bullshit, to put it bluntly. There is no software without a "technical effect". So the consequence would be that all software is patentable.
We should ignore the normal interaction between hardware and software when determining the technical effect. If the only technical effects you can identify are "there are now electrical currents running" or "the computer does something new", that's not enough.
And you said it yourself. You said you believe that every patent attorney can introduce a technical effect into a claim.
Every *competent* patent attorney :) But yes, this is almost always possible. But I also think most of such claims will be of very little value (very limited because of lots of limitations to establish the technical effect) and they will almost always be obvious (because the technical effect obtained is very simple and not surprising).
It's interesting to note by the way that the Japan's patent act defines a patentable invention as a highly advanced creation of a technical idea utilizing a law of nature, and they allow claims to computer programs by themselves. So apparently in Japan creating a computer program uses a force of nature.
I am not familiar with japanese law. I can not even read japanese, so I have no way at all to tell what their law says.
http://www.law.washington.edu/casrip/CompIP/JPExcerpt.html http://www.lise.jp/jplenglish.html
However, I have heard that no law actually allows software or logic patents, and that it is just the respective patent offices making up the practice.
I can find nothing in Japanese patent law that explicitly forbids patents on computer programs, as such or otherwise. There is nothing on "logic" either, although there is the explicit requirement for "the highly advanced creation of technical ideas by which a law of nature is utilized".
Kind regards,
Arnoud Engelfriet
On Sun, Dec 15, 2002 at 03:34:30PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 12:46:43PM +0100, Arnoud Galactus Engelfriet wrote:
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
The problem is that the patentability of all pure mental tewchniques is a direct consequence of allowing any software patents, because it is not possible to draw the distinction you want to draw. The term "Technical effect" is without real meaning.
It is impossible to give a clear definition of "technical", that is true. But it is also impossible to give a clear definition of many other legal terms, like "reasonable doubt", and most constitutional rights.
Now, come on. It's a pretty weak argument, even as a defense, and much weaker to actively support a position. First, many terms are quite clear. "Killing" for example is pretty easy to understand. "Stealing" too. So is the term "technical invention", based on the concept of "forces of nature" which you consider to be so antiquated and old-fashioned.
The forces-of-nature concept was introduced into patent law to restrict patents to technical inventions, rather than new abstract and logical ideas. The reason you have a problem with this definition is that you (as the EPO) want to patent something non-technical. The EPO had the problem that the law restricted patents to technical inventions. The clever trick they use is the hyperartificial construct of the "technical effect" to justify (poorly) their actions.
I don't know why you also use the "technical effect" to defend your position, as you could just argue for non-technical patents because you are not bound to law in your position. Maybe it is easier for you to pick up the newspeak by the EPO rather than actually use the language that everybody understands. Maybe you don't really realize that the newspeak by the EPO is hollow and circular.
Anyway, the world is not helped with constructions like "technical effect", which have an overly broad meaning, ie "anything that is related to something technical", like your images from x-rays.
We should ignore the normal interaction between hardware and software when determining the technical effect. If the only technical effects you can identify are "there are now electrical currents running" or "the computer does something new", that's not enough.
EPO newspeak. Now we not only have the imprecise term "Technical effect", we have the even more imprecise term "further technical effect". So what is the "further technical effect" in saving memory or bandwidth? As far as I can see, a new algorithm that consumes only half the memory does only have the normal interaction between hardware and software (it's completely normal for that new algorithm to consume half that memory).
Please start to make sense. Speak in a language I can understand. If you want to use terms like "technical effect", I assume you are just picking up the apologetic EPO vocabulary unless you give an acceptable definition for them. It must be possible, because if it is not, these terms are not useful to be used in law (you can use them in a novel, or in a speach in front of patent attorneys, but for law they have to be avoided).
And you said it yourself. You said you believe that every patent attorney can introduce a technical effect into a claim.
Every *competent* patent attorney :) But yes, this is almost always possible. But I also think most of such claims will be of very little value (very limited because of lots of limitations to establish the technical effect) and they will almost always be obvious (because the technical effect obtained is very simple and not surprising).
The current practice of 30000 harmful logic patents proofs you wrong.
Thanks, Marcus
Marcus Brinkmann wrote:
On Sun, Dec 15, 2002 at 03:34:30PM +0100, Arnoud Galactus Engelfriet wrote:
It is impossible to give a clear definition of "technical", that is true. But it is also impossible to give a clear definition of many other legal terms, like "reasonable doubt", and most constitutional rights.
Now, come on. It's a pretty weak argument, even as a defense, and much weaker to actively support a position. First, many terms are quite clear. "Killing" for example is pretty easy to understand. "Stealing" too.
Right, yet there is a definition in the law for what "stealing" is (the unauthorized taking away of an object for the purpose of keeping it, in Dutch law).
So is the term "technical invention", based on the concept of "forces of nature" which you consider to be so antiquated and old-fashioned.
Indeed. It's antiquated, old-fashioned and does not reflect today's society.
I can give you another definition of "invention": a practical realization of technology, wherein technology means an application of a natural science.
The forces-of-nature concept was introduced into patent law to restrict patents to technical inventions, rather than new abstract and logical ideas.
No, it restricts patents to a small subset of technical inventions. *That's* the problem.
Anyway, I've snipped the rest of your mail as I believe I have addresses this in my other response to you.
Kind regards,
Arnoud Engelfriet
On Mon, Dec 16, 2002 at 06:27:22PM +0100, Arnoud Galactus Engelfriet wrote:
I can give you another definition of "invention": a practical realization of technology, wherein technology means an application of a natural science.
The economical consequences on granting patents for that type of inventions would be desasterous. Also the impact on the personal freedom, and the freedom of science. I wouldn't want to live in such a society.
The forces-of-nature concept was introduced into patent law to restrict patents to technical inventions, rather than new abstract and logical ideas.
No, it restricts patents to a small subset of technical inventions. *That's* the problem.
No, it restricts patents to technical inventions, and keeps them out of the world of abstract thought and logic. I think we have been there before.
Thanks, Marcus
Marcus Brinkmann wrote:
On Mon, Dec 16, 2002 at 06:27:22PM +0100, Arnoud Galactus Engelfriet wrote:
I can give you another definition of "invention": a practical realization of technology, wherein technology means an application of a natural science.
The economical consequences on granting patents for that type of inventions would be desasterous. Also the impact on the personal freedom, and the freedom of science. I wouldn't want to live in such a society.
In my view we already live in this society, because today you *can* patent any practical implementation of technology. I personally do not think this has a significant impact on my personal freedom.
I think my definition does not encompass the abstract and the pure logic, because those are not practical realizations. A device implementing the abstract, or operating according to certain logic would be patentable.
Let's agree to disagree here. I do not think we will ever be able to convince one another.
Kind regards,
Arnoud Engelfriet
On Mon, Dec 16, 2002 at 07:05:44PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus Brinkmann wrote:
On Mon, Dec 16, 2002 at 06:27:22PM +0100, Arnoud Galactus Engelfriet wrote:
I can give you another definition of "invention": a practical realization of technology, wherein technology means an application of a natural science.
The economical consequences on granting patents for that type of inventions would be desasterous. Also the impact on the personal freedom, and the freedom of science. I wouldn't want to live in such a society.
In my view we already live in this society, because today you *can* patent any practical implementation of technology. I personally do not think this has a significant impact on my personal freedom.
Well, it's bad, but not as bad as you would want to make it with your definition. So far, the EPA still has to put in a lot of effort to grant patents on things it is not allowed to grant patents on.
You might say it has not a lot of impact on your personal freedom. As if I care about your personal freedom. For example, I don't use the word "Amen" a lot, it would not have any impact on me if it would become forbidden to say "Amen". But nevertheless I am prepared to stand up anytime for someone's right to say "Amen".
If all you care about is your personal freedom, you might be fine with the current developments in patent law. However, I have extreme reservations about your judgement of what is good and not good for the society if you only value your own freedom and not that of others. For example the freedom of Marcel Martin, who was forced to remove a library to handle huge integers in pascal from the net. (http://www.znz.freesurf.fr/).
Let's agree to disagree here. I do not think we will ever be able to convince one another.
We certainly don't need to repeat our arguments. Everybody is their own judge, and people can read over what we wrote and make up their own mind in which world they want to live.
Thanks, Marcus
Marcus,
You wrote:
If all you care about is your personal freedom, you might be fine with the current developments in patent law. However, I have extreme reservations about your judgement of what is good and not good for the society if you only value your own freedom and not that of others. For example the freedom
I think you are being extremely unfair here. You make a value judgment about today's society regarding software patents. I respect that, but I make a different judgment. I can only tell you how I view the world and whether I am happy with the world.
Now you make it sound as if I am a completely selfish arrogant bastard who is incapable of caring about anyone but himself. I don't think I deserve that. I have different opinions than you, but that does not make me an evil person.
So, I am not going to continue our discussion here because I feel it is pointless. We are incapable of appreciating each other's arguments, and I do not like participating in a debate where it is fair game to insult your opponent.
Kind regards,
Arnoud Engelfriet
On Mon, Dec 16, 2002 at 07:30:55PM +0100, Arnoud Galactus Engelfriet wrote:
Marcus,
You wrote:
If all you care about is your personal freedom, you might be fine with the current developments in patent law. However, I have extreme reservations about your judgement of what is good and not good for the society if you only value your own freedom and not that of others. For example the freedom
I think you are being extremely unfair here. You make a value judgment about today's society regarding software patents. I respect that, but I make a different judgment. I can only tell you how I view the world and whether I am happy with the world.
Now you make it sound as if I am a completely selfish arrogant bastard who is incapable of caring about anyone but himself. I don't think I deserve that. I have different opinions than you, but that does not make me an evil person.
Maybe I was unfair, yes. But sometimes you have to aim a bit higher to hit the target. You have an opinion and I respect that. But I think that your opinion is one that, if implemented, would be very bad for our society (and all studies about patents support that). And this is important, because we are not having a philosophical discussion here (at least I am not).
We are now in a situation where a political decision will be made. Now is the time to act politically. And in politics, just having an opinion is not good enough. I am sure that if we pull together 20 people, we will have 20 different opinions on patents (even if all 20 people are free software programmers, and against them).
But it's one thing to have an opinion, and another thing to have a solution.
What we need now are solutions. We can not go to the government and say "let's make everything patentable that in Arnoud's (Marcus', Simon's, whoever) opinion should be patentable".
Thanks, Marcus
On 16 Dec 2002 at 19:30, Arnoud Galactus Engelfriet wrote:
I think you are being extremely unfair here. You make a value judgment about today's society regarding software patents. I respect that, but I make a different judgment. I can only tell you how I view the world and whether I am happy with the world.
Now you make it sound as if I am a completely selfish arrogant bastard who is incapable of caring about anyone but himself. I don't think I deserve that. I have different opinions than you, but that does not make me an evil person.
In fairness, I think Marcus was being "robust" in his reply, not offensive. He did not actually say your view would be the death knell for all society.
I do feel however he was not being constructive in his argument. The whole point of argument is primarily to state opinion yes, but it is also about /changing/ of opinion. That can occur on your own end or of that of others. This list *is* called "discussion@fsfeurope.org" and therefore I would imagine would involve discussion of opinions via argument. If I'm wrong here, please tell me and I'll unsub!
So, I am not going to continue our discussion here because I feel it is pointless. We are incapable of appreciating each other's arguments, and I do not like participating in a debate where it is fair game to insult your opponent.
Well I personally was gaining from your discussion, so I hope you reply to my replies. I very much value your input as a professional lawyer as I believe no one else on this list has such qualification. I personally hope you reconsider and continue to provide your views on this list. If not, then thank you for the time you have already contributed!
Yours respectfully, Niall
On Mon, 2002-12-16 at 19:05, Arnoud Galactus Engelfriet wrote:
In my view we already live in this society, because today you *can* patent any practical implementation of technology. I personally do not think this has a significant impact on my personal freedom.
Because you are looking at your feet instead of looking at the street in front of you. If you put a fencing around you, and everyone else do the same but look at your feet you seem to be ok, but once you rise your eyes you may see that you cannot be nowhere because everything is blocked now. By letting people patenting everything you simple make it impossible to move.
I think my definition does not encompass the abstract and the pure logic, because those are not practical realizations. A device implementing the abstract, or operating according to certain logic would be patentable.
If you make it impossible to reuse the same pure logic if you have a patent that cover a practical implementation of that pure logic, than the effect is like patenting the pure logic ... that's ... well ... logic!
regards, Simo.
On Mon, 2002-12-16 at 18:27, Arnoud Galactus Engelfriet wrote:
Indeed. It's antiquated, old-fashioned and does not reflect today's society.
Sometimes society get deviated by partisan economical interest and need corrections.
No, it restricts patents to a small subset of technical inventions. *That's* the problem.
That's not the problem, that's the right thing, it has effect only in fields where researching is really difficult and need incentives to speed up progress. And a field where perfect solutions (as in software) does not exist so that different method to achieve the same effect can always be found and a beneficial competition can help into keeping the market healthy
Simo.
On Sun, 2002-12-15 at 11:46, Arnoud Galactus Engelfriet wrote:
And please also realize what you just said. You said that everything will be patentable. Is this truely what you want?
I don't think I said that. Patents should be available for all technical inventions, and I believe it makes no difference whether the invention is based on software. But a purely mental technique, or a method of doing business should not be patentable.
This would be the problem I have with software patents - modulo all the other arguments that are being put forth, I don't believe software is technology.
Software started as, and is, a branch of mathematics. Although the systems being designed are extremely complex (e.g., wordprocessors), they are no different to the simple programs that children write.
All software can be reduced to some set of math. Often, software is designed upon a few core mathemetical ideas, which make up the basis of the software. For example, a 3D CAD package. This would make use of a number of areas of maths: vector/matrix math would be used to describe the objects. As a side-point (more of which later), althought the objects exist in the CAD, that's fairly meaningless: they don't exist in real life, although obviously their ephemeral form is useful to us in a number of ways.
The breakdown of software to maths is best shown by the "Gallery of DeCSS Descramblers", at http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/. It's aimed at showing the DMCA to be a bad law, and hence a number of the examples are not relevant to this argument, but the basic argument is the same: if you treat software as you would technology, the logical extension of your argument has ridiculous implications. Here, the application of the DMCA brings legal doubt over publishing mathematical theorums, for example, but also (in the Steganography wing) publishing certain (probable) prime numbers, which are equivilent to the software, the algorithm, and hence "covered".
The examples of DSPs given were actually something I argued about with Xavi when I first learned about the problems with software patents. On the face of it, they are a very good example of why we should have software patents. Let's say I design a DSP that is going to function in an audio circuit as an echo chamber - a specific echo chamber. The echo chamber I wish to replicate is a patented system (perhaps like a Leslie Cabinet - I *think* that is patented..), and the obvious way for me to go about this is to model in software the physical properties of the cabinet, and replicate them. That way, the sound I generate is identical.
Now, is the DSP covered by the patent? The obvious answer is yes: it's doing exactly the same thing - causing the same technical effect - but just in software, so it should be covered by the same patent. The argument is, remember, that a technical patent should be available whether or not the device is software driven.
However, I think that the obvious answer is the wrong answer, and it becomes more obviously wrong if we look at it from the opposite direction - coming back to my previous point that ephemeral forms can be useful to us. That's not always the case. If, in my modelling of the Leslie cabinet, I changed it so that the audio was bouncing off walls several tens of metres away but not decreasing in amplitude, I have a system with extreme echo but no audio degradation.
Is that useful? As the model itself, yes it is useful, because I have achieved a technical effect that was not possible before. However, it's not physically useful: although I have modelled a cabinet, my model bounces audio waves around with no loss of volume or clarity. Although my audio effect depends on this, it's not something that I can reproduce in real life: I could never actually *build* the cabinet, because no such materials exist with those properties.
The fact that we can build such impossibilities in software does, I think, point at the fact that software is different; radically different. Take my altered DSP. If someone achieved this technical effect physically, they would be hailed a genius. Someone achieving this technical effect with software would not be similarly praised.
To compare the technical achievements of a field such as electronics with software is wrong, clearly wrong. Something achievable with software may be completely unachievable with electronics, so to give a patent based on the same technical acheivement is equally unbalanced. I think the above example shows that the "technical effect" argument is useless for software: yes, software can exhibit technical effects similar to more conventional devices; but no, I don't think they can be argued to be either inventive or novel or unobvious - usually the contrary. A software patent in that context becomes a purely economic device; there is no benefit to innovation from having it, and indeed it would do great damage.
I think the reason people argue from the basis of "forces of nature" is to do with the above reasoning: that the design of software is not contrained physically in the same manner as other devices, and hence the effects are not immediately comparable in terms of innovation/achievement.
The question that comes from that, I guess, is "are the technical effects of software that are of sufficient invention that would warrant a patent?". My answer is no. Software is constrained by a number of things. Amount of memory - you need lots of memory to run some programs. You often need a fast CPU. The definition of computability, though, ignores these limits: the Turing machine has infinite memory and infinite time to perform a computation. The real limit is on those things which are computable, because not all problems are computable. For some things, there is just no answer.
This is a very black and white limitation. Either you can compute something, or you can't. For some problems, we're not sure yet - some things which look to be uncomputable might actually turn out to be computable - but that's our uncertainty, not a general uncertainty. For those things that are computable, it's a fairly flat space: there are no other constraints, other than your own time and your imagination. Everything in that space is accessible, and it takes no stroke of genius to find a new space, or discover a new plain. Hence, I don't see by what criteria we could award patents, and don't see what could warrant awarding one.
[This is beside all the other arguments: I believe the economic one to be particularly strong - software patents should not be given simply because they are not needed.]
Cheers,
Alex.
Alex Hudson wrote:
[This is beside all the other arguments: I believe the economic one to be particularly strong - software patents should not be given simply because they are not needed.]
Let me just say that you make an interesting point, and I agree with you that this makes it very difficult to defend 'software patents'. However, are you sure you're making an economic argument?
For me, the economic argument is simply "software can be used to imitate hardware, so if software is unpatentable I can get around patents by simply using software instead". This is unfair to patent holders and hence software that imitates hardware should be protected by the patent.
This does not mean *all* software is patentable. Just the software that is used to imitate the behavior of a specific hardware design. And I guess that's what I'm trying to say with the technical effect argument: if the software achieves the same effect as the hardware would, it should be just as patentable.
Arnoud
Hi Arnoud,
On Sun, 2002-12-15 at 14:40, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
[This is beside all the other arguments: I believe the economic one to be particularly strong - software patents should not be given simply because they are not needed.]
Let me just say that you make an interesting point, and I agree with you that this makes it very difficult to defend 'software patents'. However, are you sure you're making an economic argument?
Sorry, I should have been more clear about my addendum: the main point of my email was the problem using "technical effect" when referring to software. It is a very complicated argument, and, I think, requires someone to know a lot about software and what it is before they understand it fully. For me, the "patents are not needed economically" argument is simpler to understand, and therefore stronger - it wasn't an adjunct to my main argument :) The simple question is, "what benefits do software patents give us?" - I believe it is extremely difficult to argue successfully that there are *any* tangible benefits that would be measurable (indeed, quite the reverse).
For me, the economic argument is simply "software can be used to imitate hardware, so if software is unpatentable I can get around patents by simply using software instead". This is unfair to patent holders and hence software that imitates hardware should be protected by the patent.
This does not mean *all* software is patentable. Just the software that is used to imitate the behavior of a specific hardware design. And I guess that's what I'm trying to say with the technical effect argument: if the software achieves the same effect as the hardware would, it should be just as patentable.
I don't believe it is unfair. The person who has implemented something physically (like the speaker cabinet) has something qualitively different to someone with a piece of software. In fact, implementing something like that as a piece of software is unnecessary - you're developing complicated signal processing technology to replicate the effect of 2EUR worth of rotary mechanism :)
I also don't think that re-implementation of something is necessarily something that should be covered by a patent. Software gives us entirely new ways of doing things, and it would not be the ground-breaking industry it is unless it was obsoleting things. In fact, it's precisely because it makes previously difficult things so easy that it's interesting.
It's interesting that you have to fall back to the argument that software doing the same (or better) job than hardware should be prevented, since it's "unfair". To me, that's progress - when someone finds a new, more efficient, way of doing the same job that's how progress is made.
The difference between software and physical devices also cuts both ways. If I "invented" a type of echo chamber that was implemented completely in software, I don't believe I should be able to patent it. Let's assume that it was so clever that no-one - myself included - knew how to build one physically, perhaps because I modelled some seemingly magical material with fantastic properties.
But, if someone *did* eventually manage to recreate my device physically, they should still be allowed to patent it - the fact you can do something in software easily does not detract from the achievement of doing something difficult physically. If we had your system, though, where the achievements of software and hardware are directly comparable, someone coming up with a radical new device would be prevented from gaining patent protection for it, because I had already done it (easily) in software. That, to me, doesn't seem fair - indeed, there would be no incentive for a materials researcher to investigate my system to see if they could make it physically.
The "technical effect" of doing something in software, as opposed to creating a physical device to do something, is not easily comparable. Patents should not be used to prevent progress, they should not be used as an economic crutch so that ailing industries and outdated practices can be propped up for a little longer. Similarly, the amazingly fast progress in the field of software (which currently outstrips all other industries, AFAIK) should not be allowed to prevent what invention currently takes place in fields of technology now.
I would be interested to know what arguments you would put forward to say that software is directly comparable to, say, electronics - other than the fact that we colloqually refer to them as "technology", I don't think that the results and inventions in electronics - new types of transistor, etc. - have any relevance to software, and vice versa.
Cheers,
Alex.
Hi,
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
It's interesting that you have to fall back to the argument that software doing the same (or better) job than hardware should be prevented, since it's "unfair". To me, that's progress - when someone finds a new, more efficient, way of doing the same job that's how progress is made.
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
The difference between software and physical devices also cuts both ways. If I "invented" a type of echo chamber that was implemented completely in software, I don't believe I should be able to patent it. Let's assume that it was so clever that no-one - myself included - knew how to build one physically, perhaps because I modelled some seemingly magical material with fantastic properties.
Ok, but when you say "implemented in software", you mean you have a working echo chamber purely in software? Why should you then not be able to patent that?
But, if someone *did* eventually manage to recreate my device physically, they should still be allowed to patent it - the fact you can do something in software easily does not detract from the achievement of doing something difficult physically. If we had your system, though, where the achievements of software and hardware are directly comparable, someone coming up with a radical new device would be prevented from gaining patent protection for it, because I had already done it (easily) in software. That, to me, doesn't seem fair - indeed, there would be no incentive for a materials researcher to investigate my system to see if they could make it physically.
Well, what you're saying is that 'inventions' in software do not actually exist until they're built in hardware. The comparison with science fiction springs to mind: Star Trek would not be prior art against someone building a matter transporter. But if Gene ever had explained how you could build one, you could no longer patent the general concept of matter transporters.
I would be interested to know what arguments you would put forward to say that software is directly comparable to, say, electronics - other than the fact that we colloqually refer to them as "technology", I don't think that the results and inventions in electronics - new types of transistor, etc. - have any relevance to software, and vice versa.
I do not believe the field of software development itself needs patent protection. I believe patents should be available for technological progress, and should protect a patentee against people making imitations of his inventive idea.
In my opinion, it should not matter *how* you imitate someone's patented invention. If it is covered by the claims, you infringe and you need a license. If you have a different solution, great, you're in the clear.
There is a class of software that can perform the same function as certain hardware. This class should be covered by patents if they are embodied in a device. Other software, which can do things hardware cannot, should be outside the realm of patents.
To name an example, let's take MPEG again. When you make a video compression technique, you can build it in hardware or in software that runs on a general-purpose processor. The patent should cover both, or none. Not just the hardware variant.
I personally believe the patent should cover both. Others here believe the patent should cover neither. That's fine, but I do not think it is logical that you can cover one but not the other if it's essentially doing the same thing.
Kind regards,
Arnoud Engelfriet
On Mon, 2002-12-16 at 18:03, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
Are you talking about imitators or copiers?
When you imitating a solution (either aware of it or not) you're having more or less the same amount of effort the original solver had since you're probably not even doing it the same way.
When you're copying the solution, you only had the work of copying (almost zero, normally)... that is, you copied and relaunched as yours...
Why is your effort worth it, and not the others'? Is there any reason your idea would *only*come*from*you*?
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
You're the only one selling potatoes. Someone decides to sell potatoes too. Make some money, maybe even sell cheaper, etc.. in the end, the consumer benefits.
Why should your business monopoly be protected by law?
Well, what you're saying is that 'inventions' in software do not actually exist until they're built in hardware. The comparison with science fiction springs to mind: Star Trek would not be prior art against someone building a matter transporter. But if Gene ever had explained how you could build one, you could no longer patent the general concept of matter transporters.
You could *NEVER* patent "a" matter transporter. You can only patent *THIS* matter transporter.
That's what you're missing. Software is not matter...
Rui
Rui Miguel Seabra wrote:
When you imitating a solution (either aware of it or not) you're having more or less the same amount of effort the original solver had since you're probably not even doing it the same way.
OK. But in my terminology, you're not imitating, you're looking for an alternative since the solution is not essentially the same.
When you're copying the solution, you only had the work of copying (almost zero, normally)... that is, you copied and relaunched as yours...
OK. And what if you make small modifications, for example making it out of plastic instead of metal?
Why is your effort worth it, and not the others'?
Basically, because I'm the first and I told the world how to avoid having to imitate the solution.
Is there any reason your idea would *only*come*from*you*?
Probably not. But without the incentive offered by the patent, is there any reason anyone would reveal the details of the idea?
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
You're the only one selling potatoes. Someone decides to sell potatoes too. Make some money, maybe even sell cheaper, etc.. in the end, the consumer benefits.
Why should your business monopoly be protected by law?
Selling potatoes isn't novel. If I tell the world something technically novel and practically useful, it helps the progress of science, and I should be rewarded. I like the idea of rewarding people with a monopoly.
Well, what you're saying is that 'inventions' in software do not actually exist until they're built in hardware. The comparison with science fiction springs to mind: Star Trek would not be prior art against someone building a matter transporter. But if Gene ever had explained how you could build one, you could no longer patent the general concept of matter transporters.
You could *NEVER* patent "a" matter transporter. You can only patent *THIS* matter transporter.
That's what you're missing. Software is not matter...
If I'm the first to invent a particular matter transporter, then I'm also the first to invent _the_ matter transporter. It wasn't there before. I made it, and so I should have the patent to it. Just like Edison patented the lightbulb.
If one particular matter transporter already exists, I can no longer patent _the_ matter transporter, just particular implementations.
Kind regards,
Arnoud Engelfriet
On Tue, 2002-12-17 at 08:08, Arnoud Galactus Engelfriet wrote:
Probably not. But without the incentive offered by the patent, is there any reason anyone would reveal the details of the idea?
the idea is self evident. That's why patent is about how you implement it and not the idea itself. However sometimes (should I say often today ?) also the way it is implemented is self evident.
That would be a good criteria, to choose: if the invention is self evident it does not need protection as it does not give nothing more to the community to describe a self evident process with convoluted patent attorney made words.
Why should your business monopoly be protected by law?
Selling potatoes isn't novel. If I tell the world something technically novel and practically useful, it helps the progress of science, and I should be rewarded. I like the idea of rewarding people with a monopoly.
Seem also you do not like to consider the consequence of this idea.
If I'm the first to invent a particular matter transporter, then I'm also the first to invent _the_ matter transporter. It wasn't there before. I made it, and so I should have the patent to it. Just like Edison patented the lightbulb.
Again ... you are patenting an abstract idea that way. Edison patented it's light bulb not every possible light emitting device. Ideas cannot be rewarded, ideas are cheap and a consequence of every little previous idea, they pop up by them selves at a point of the evolution of a society, when times are ready to make that idea conceivable.
What is often difficult to do is realizing the idea. That particular realization may be rewarded in some cases.
Why you again try to sell us a way of thinking that is self evident broken? You say pure logic should not be covered by patents, but immediately after that you want a way to effectively patent pure logic, concepts, abstract ideas?
Simo.
On Tue, 2002-12-17 at 07:08, Arnoud Galactus Engelfriet wrote:
Rui Miguel Seabra wrote:
When you imitating a solution (either aware of it or not) you're having more or less the same amount of effort the original solver had since you're probably not even doing it the same way.
OK. But in my terminology, you're not imitating, you're looking for an alternative since the solution is not essentially the same.
When you're copying the solution, you only had the work of copying (almost zero, normally)... that is, you copied and relaunched as yours...
OK. And what if you make small modifications, for example making it out of plastic instead of metal?
LOL You can't make a patent that way!
You can't make a patent on a transportation device. You can make a patent on a particular and well detailed transportation device.
To make something in metal you have to follow a set of procedures. To make something in plastic (even if it does the same thing) you have to follow a different set of procedures.
You can't patent: a device that solves this problem. You can patent: this device that solves this problem.
Why should you be able to do that in software?
Software is so fundamentally different than hardware! It does not have (not even a fraction) the same high costs, or risks. Its investigation is *completely* incremental (you can't make some software that's so radically new that it is based on nothing that doesn't already exist).
Why is your effort worth it, and not the others'?
Basically, because I'm the first and I told the world how to avoid having to imitate the solution.
Well, the fact of having your patent, means precisely others will have to avoid imitating your solution, so they do not run the risk of not being allowed to do something!
Software patents do not promote disclosure. Software patents propose obscurity. If you are the holder of a software patent you decide: a) who can use that software today b) who will stop to use that software tomorrow c) change a) and b) at your will
And you can do so for an "eternity" in "software time".
The conclusion is obvious: most investigation is completely screwed.
1. Most people have to spend fortunes and an enormous time investigating the existing patents in order to work around them. We already know how hard (impossible?) it is to investigate the existing patents.
2. Now add to that, the pending patents, which may bite you in the ass when you least expect.
3. Add to that the thousands of software patents.
Sum 1+2+3, and please reach the same conclusion we did:
Only the powerful and rich can afford investigation. All others run immense risks, so they feel unmotivated to investigate. As a result, less people investigate. More obscurity.
Saying that that isn't true is completely ignoring reality. It already happened, and is still happening.
Now some intent on changing the law so that becomes a reality in Europe. Worse, those same people already have thousands of advantages granted by the EPO, and still there is the intention of putting in harmony the European and US Patent offices.
If you are in favour of an ideal system of patents that does not exist, I could understand. But you are defending something that causes a lot more harm to society than any unreal good it could bring.
Rui
On Mon, 2002-12-16 at 19:03, Arnoud Galactus Engelfriet wrote:
Hi,
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
what's wrong in re-implementation? patents borned to stop copying to let you invest into making things, not to stop progress, re-implementation is progress ... we costantly re-implement inventions to make things easier, better, faster, nicer, ecc...
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
seem you are not thinking that most problems have just one solution. if you patent the solution you patent the problem, if you patent the problem you stop innovation and progress because nobody except the patent holder is entitle to research in that problem field (and the patent holder is not pushed by competition either).
4 + 4 = 8 there are no different solution that math if you make it be 4 + 4 = 5 you simply get it wrong.
Well, what you're saying is that 'inventions' in software do not actually exist until they're built in hardware. The comparison with science fiction springs to mind: Star Trek would not be prior art against someone building a matter transporter. But if Gene ever had explained how you could build one, you could no longer patent the general concept of matter transporters.
Sorry but patenting general concept is just plain crazy, see previous argumentations.
In my opinion, it should not matter *how* you imitate someone's patented invention. If it is covered by the claims, you infringe and you need a license. If you have a different solution, great, you're in the clear.
If you copy it, not if you get to the same solution through different methods, imitating is the essence of invention, it is trough imitating and composing previous ideas in a different shape ... if you block the idea you block innovation.
To name an example, let's take MPEG again. When you make a video compression technique, you can build it in hardware or in software that runs on a general-purpose processor. The patent should cover both, or none. Not just the hardware variant.
That's nonsense, you are patenting an algorithm this way, you are patenting pure logic; pure logic cannot be patentable it's crazy to let people patent concepts!
I personally believe the patent should cover both. Others here believe the patent should cover neither. That's fine, but I do not think it is logical that you can cover one but not the other if it's essentially doing the same thing.
That's the wrong way to put it, you cannot say that something is not software just because you hardwired it into hardware!
regards, Simo.
Simo Sorce wrote:
On Mon, 2002-12-16 at 19:03, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
what's wrong in re-implementation? patents borned to stop copying to let you invest into making things, not to stop progress, re-implementation is progress ... we costantly re-implement inventions to make things easier, better, faster, nicer, ecc...
Nothing wrong with re-implementation. It just is difficult to imagine how a patent can be worth anything if any re-implementation of the same thing is not covered.
If it's an improvement, I believe you should be legally required to get a license from the original patent holder.
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
seem you are not thinking that most problems have just one solution.
No technical problem has just one solution.
if you patent the solution you patent the problem, if you patent the problem you stop innovation and progress because nobody except the patent holder is entitle to research in that problem field (and the patent holder is not pushed by competition either).
That's not true, everyone can do research and development. You just can't make and sell products based on the research if the products infringe a patent.
4 + 4 = 8 there are no different solution that math if you make it be 4 + 4 = 5 you simply get it wrong.
That's not a technical invention.
To name an example, let's take MPEG again. When you make a video compression technique, you can build it in hardware or in software that runs on a general-purpose processor. The patent should cover both, or none. Not just the hardware variant.
That's nonsense, you are patenting an algorithm this way, you are patenting pure logic; pure logic cannot be patentable it's crazy to let people patent concepts!
I'm patenting a device that implements the logic. Feel free to research and use the logic. Just don't sell devices implementing the logic.
Kind regards,
Arnoud Engelfriet
On Tue, 2002-12-17 at 08:11, Arnoud Galactus Engelfriet wrote:
Simo Sorce wrote:
On Mon, 2002-12-16 at 19:03, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
what's wrong in re-implementation? patents borned to stop copying to let you invest into making things, not to stop progress, re-implementation is progress ... we costantly re-implement inventions to make things easier, better, faster, nicer, ecc...
Nothing wrong with re-implementation. It just is difficult to imagine how a patent can be worth anything if any re-implementation of the same thing is not covered.
Do you think any method to build a thing have the same cost? If your is more cost effective, people will still use yours, of course you will need to keep royalties to a resonable price, but it is good if there is some sort of balance.
If it's an improvement, I believe you should be legally required to get a license from the original patent holder.
Who will ever research in a field if he knows there is a patent here? You just said in previous mail, that if you cannot profit for it your are not going to research either! So I bet the conclusion is: nobody! You are effectively prohibiting research.
Facts are that many scientist are dropping research in some field because their patent attorney said them there are patents and the thing will not be profitable cause of royalties. Research are getting dropped: today! It's not a fantasy, go ask around, and if you let patent ideas or general problems research will simply stop.
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software. If it's a new solution, you're in the clear. If it's just a different realization, you're infringing.
seem you are not thinking that most problems have just one solution.
No technical problem has just one solution.
That's not true, however you said you want to cover all possible solutions, so in your patent system it does not make any difference.
if you patent the solution you patent the problem, if you patent the problem you stop innovation and progress because nobody except the patent holder is entitle to research in that problem field (and the patent holder is not pushed by competition either).
That's not true, everyone can do research and development. You just can't make and sell products based on the research if the products infringe a patent.
I repeat: who will ever research in a field if he knows there's yet a patent that covers the problem? (Yes covering all possible solutions mean effectively covering the problem)
4 + 4 = 8 there are no different solution that math if you make it be 4 + 4 = 5 you simply get it wrong.
That's not a technical invention.
Of course it's not, let's try to figure out what examples stand for please :-)
That's nonsense, you are patenting an algorithm this way, you are patenting pure logic; pure logic cannot be patentable it's crazy to let people patent concepts!
I'm patenting a device that implements the logic. Feel free to research and use the logic. Just don't sell devices implementing the logic.
Do you realize you are effectively patenting the logic this way? I may (not sure) agree if you say: - the patent cover *this* way to implement the logic. That's fine. But if you say: - the patent cover any device the implement the logic, you are effectively patenting the logic! That's not fine at all, patenting logic is absurd.
Simo.
On Mon, 2002-12-16 at 18:03, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
I also don't think that re-implementation of something is necessarily something that should be covered by a patent.
But surely all imitators are re-implementing an invention?
I don't accept that software can be an invention, so the question is meaningless - it misses the point.
Well, I also think that if you find a different implementation of the same inventive idea in hardware, the patent holder should be able to stop you. Just like with software.
No, not like software at all. Software is generally covered by copyright, and often by contract law also. There is nothing that says I cannot re-implement things: that's how the GNU project started.
Ok, but when you say "implemented in software", you mean you have a working echo chamber purely in software? Why should you then not be able to patent that?
For the reasons I spelt out in my previous e-mail : you *cannot* compare the technical effects of software versus technology like electronics. Patents should be given on the basis of an achievement; and my example of a software echo chamber showed there was no achievement there. The only thing 'new' was the effect itself, but the effect is not what is patented, it is the means of achieving the effect. With electronics, that may well be inventive, with software it is not.
Software cannot be lumped together with electronics, and biology, and chemistry, and medicine, and all the other 'patentable' fields. It must be treated as different, because it is able to achieve such vastly different effects.
Well, what you're saying is that 'inventions' in software do not actually exist until they're built in hardware.
No, that's not my point. My point is that building something in software is easily and not challenging. Building it in hardware isn't necessarily so. Devices created in software are not restricted: there are no bounds which cause a programmer to think, other than those created by the hardware he is running the software on. Hardware is very different. A novel piece of hardware achieves something others could not, and is new and inventive - the inventor works with the limitations of the physical but acheieves his goal anyway. A software programmer has no theoretical limitations (other than what is computable); it is difficult to see how something in that domain could ever be inventive.
I do not believe the field of software development itself needs patent protection. I believe patents should be available for technological progress, and should protect a patentee against people making imitations of his inventive idea.
You cannot have one without the other: there is no way you can make patents available for 'technological progress' without making them available for software development.
The AFFS (a UK Free Software organisation) went to London Expo in October, and we had a number of posters with us. One of which was a "Danger: Software Patents!" poster, which had two quotes which I think expose the risk neatly. They are taken from the “Software Patents in Europe” Conference http://www.patent.gov.uk/about/ippd/softpat/index.htm) that was held by the UKPTO over here a year or two ago, IIRC.
"Up to now software-based inventions can only be protected in the European Community - with the exception of one Member State - disguised in the form of processes, systems or devices controlled by software.” - Arno Koerber, Director Intellectual Property, Siemens AG
“The Commission might be prepared to support a revision of the Munich Convention to improve it and to make it clear that computer programmes are no longer excluded from patent protection.” - John Mogg, Director General of DG XV
People are not interested in this "patent reform" because they want to make sure people with patents are protected from "softare imitators". They want it because they want to extend patents to software in general. They see the patent for what it is - an extremely effective economic device - and wish to use it against their competition.
In my opinion, it should not matter *how* you imitate someone's patented invention. If it is covered by the claims, you infringe and you need a license. If you have a different solution, great, you're in the clear.
This is where we disagree - your assumption that software and other fields are comparable is, I think, wrong.
To name an example, let's take MPEG again. When you make a video compression technique, you can build it in hardware or in software that runs on a general-purpose processor. The patent should cover both, or none. Not just the hardware variant.
I don't know of anyone building MPEG in hardware - I think this is a bad example. Even the specialised broadcast hardware systems are essentially computers in boxes / on chips. Just because it resides in silicon does not make it hardware :)
I also think MPEG is a prime example of how damaging software patents would be. I believe - I heard at RMS' last talk on the subject - that it has taken longer for them to form licencing agreements for the (30+) patents involved with MPEG than it took them to agree the specification. And MPEG, although complex, isn't nearly as complex as most modern software. The standard doesn't even give you a way of encoding video into that format!
Cheers,
Alex.
On Sun, 2002-12-15 at 15:40, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
[This is beside all the other arguments: I believe the economic one to be particularly strong - software patents should not be given simply because they are not needed.]
Let me just say that you make an interesting point, and I agree with you that this makes it very difficult to defend 'software patents'. However, are you sure you're making an economic argument?
For me, the economic argument is simply "software can be used to imitate hardware, so if software is unpatentable I can get around patents by simply using software instead". This is unfair to patent holders and hence software that imitates hardware should be protected by the patent.
So you said, in a former email, that if you find another way to solve a problem it should not be covered by the patent, now that we find another way to solve the problem (through software) that it must be covered. By the way if it is "simple", then probably the "competent" patent attorney has already covered it, hasn't she?
But the problem is exactly in this statement: "This is unfair to patent holders"
Patents are not here to make patent holders a living or made them rich, they are there to promote innovation when this method is more a benefit for the community then the economical and ethical damages it can make.
Software patents, does more damages than benefits.
Simo.
Simo Sorce wrote:
On Sun, 2002-12-15 at 15:40, Arnoud Galactus Engelfriet wrote:
For me, the economic argument is simply "software can be used to imitate hardware, so if software is unpatentable I can get around patents by simply using software instead". This is unfair to patent holders and hence software that imitates hardware should be protected by the patent.
So you said, in a former email, that if you find another way to solve a problem it should not be covered by the patent, now that we find another way to solve the problem (through software) that it must be covered.
If the solution is different, it's not covered by the claim. The fact that the solution is in software does not make the solution different.
By the way if it is "simple", then probably the "competent" patent attorney has already covered it, hasn't she?
True, but according to you the software variation should be excluded from my patent even if I mention it in the patent.
But the problem is exactly in this statement: "This is unfair to patent holders"
Patents are not here to make patent holders a living or made them rich, they are there to promote innovation when this method is more a benefit for the community then the economical and ethical damages it can make.
And how do you think they promote innovation? By providing a fair amount of protection so inventors are encouraged to do innovative research. If a minor variation is enough to get around my patent, I'm not going to bother inventing.
Kind regards,
Arnoud Engelfriet
On Mon, 2002-12-16 at 18:20, Arnoud Galactus Engelfriet wrote:
If the solution is different, it's not covered by the claim. The fact that the solution is in software does not make the solution different.
It seem that you change the meaning of solution to accomodate your view, that's unfair. You just used the term "solution in software" to say it is different than the solution in hardware, so my logic say they are 2 different solutions for the same problem. Then you say the the fact that things are made in a different way "does not make the solution different" ... there's something wrong in the way you think, to me it seem that you live in contradiction with you own ideas.
By the way if it is "simple", then probably the "competent" patent attorney has already covered it, hasn't she?
True, but according to you the software variation should be excluded from my patent even if I mention it in the patent.
You shouldn't be able to mention it in the patent if you haven't realized it and give a detailed explanation on to how implement it. Otherwise you are contradicting the basic principle of patents that is the disclosure of the information to be able to build what you patent. That's another thing that make current software patents not only bad but also invalid to my eyes as there never is the hard work eg. the code, no disclosure.
But the problem is exactly in this statement: "This is unfair to patent holders"
Patents are not here to make patent holders a living or made them rich, they are there to promote innovation when this method is more a benefit for the community then the economical and ethical damages it can make.
And how do you think they promote innovation? By providing a fair amount of protection so inventors are encouraged to do innovative research. If a minor variation is enough to get around my patent, I'm not going to bother inventing.
This is in contradiction with facts, software has not been covered by patents for a long time here and innovation had a costant increasing rate. To me this means there is no need for software patents, and as monopolies are yet a problem in this field allowing new monopolies to be made is just crazy and Europe will suffer a lot from that. Not saying that software is one of the frontiers of human development and letting foreign companies to colonize us through their already granted patents (in USA and Japan) is just *suicide* for European economy. We are going to kill all our research and send all our earnings on manufactured products overseas to pay royalties ... totally crazy.
regards, Simo.
Simo Sorce wrote:
On Mon, 2002-12-16 at 18:20, Arnoud Galactus Engelfriet wrote:
If the solution is different, it's not covered by the claim. The fact that the solution is in software does not make the solution different.
It seem that you change the meaning of solution to accomodate your view, that's unfair. You just used the term "solution in software" to say it is different than the solution in hardware, so my logic say they are 2 different solutions for the same problem.
Ok, if there are two different solutions, you're free. If I said anything otherwise, I'm sorry.
Then you say the the fact that things are made in a different way "does not make the solution different"
If the only difference is that it now uses software, I do not think that is sufficient difference to make you get away from the patent. Just like it isn't a difference to paint it green or to make a plastic cover instead of a metal one.
True, but according to you the software variation should be excluded from my patent even if I mention it in the patent.
You shouldn't be able to mention it in the patent if you haven't realized it and give a detailed explanation on to how implement it.
Ok. So I include a listing in C that implements the software embodiment, and explain how the software can be loaded into a piece of hardware so you obtain the patented invention. Am I then allowed to go after people who make the hardware with the software?
Otherwise you are contradicting the basic principle of patents that is the disclosure of the information to be able to build what you patent.
Absolutely. I believe full disclosure of software should include a source code listing, although I'm not sure which language(s) to require. Does everyone understand C?
Kind regards,
Arnoud Engelfriet
On Tue, 2002-12-17 at 08:17, Arnoud Galactus Engelfriet wrote:
If the only difference is that it now uses software, I do not think that is sufficient difference to make you get away from the patent. Just like it isn't a difference to paint it green or to make a plastic cover instead of a metal one.
Software is not patentable, so the part of the invention that is patented is a specific piece of hardware. This means it is already covered.
True, but according to you the software variation should be excluded from my patent even if I mention it in the patent.
You shouldn't be able to mention it in the patent if you haven't realized it and give a detailed explanation on to how implement it.
Ok. So I include a listing in C that implements the software embodiment, and explain how the software can be loaded into a piece of hardware so you obtain the patented invention. Am I then allowed to go after people who make the hardware with the software?
No, because software should not be patentable.
Otherwise you are contradicting the basic principle of patents that is the disclosure of the information to be able to build what you patent.
Absolutely. I believe full disclosure of software should include a source code listing, although I'm not sure which language(s) to require. Does everyone understand C?
Makes no difference which language because: a) the software should not be patentable b) a language can be translated into others without problems IF the language is standard and documented
El Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet deia:
xdrudis@tinet.org wrote:
You are basically saying, to use an analogy from the FFII, I think,
3 EUR + 3 EUR = 6 EUR
is not patentable, because it handles no technical data
3 l of fuel + 3 l of fuel = 6 l of fuel
is patentable because it is technical.
Not really, but it comes close. The invention would be something like reducing the amount of fuel in a motor, which is technical, and this reduction is achieved by having a program compute the amounts in two separate fuel tanks or something.
Tanks are known, the motor is known, adding the amounts is known... You can draw up that patent without a laboratory, and without any investment in research that needs protection. It is not an invention.
This is impossible for me as a programmer to understand since the exact same program perfoms both functions. If you prohibit (monopolize) one you prohibit the other, and anything that solves the problem would be usable for fuel and therefore infringe.
The fact that it's done by a program is irrelevant. It would be the motor with its control means that would be the invention. And you can't prohibit what's outside the claims, so using the same solution for money reduction is not infringement.
Most software patents claim a computer programmed such that... or using a computer so that... claiming any computer using a program. And even those that claim only a motor embedded computer, or anything, lack inventive step. The person skilled in the art knows there are motors, tanks, and computer that calculate whatever is needed. Combining them is straightforward.
The EPO thinks it's following the EPC, but not all national courts and laws agree with the EPO's thinking. The EU believes the EPO is doing the right thing and is now trying to harmonize the laws of the Member States.
Then I better argue with the EU instead of with you :) ? Few people think the EPO is doing the right thing. The laws are already harmonized, they're just more or less abused depending on each judge. Differences aren't bigger between states than between judge in one state.
Besides, I odn't care what the EPO thinks. They have no rational explanation of their interpretation.
See EPO BoA decision T 931/95, the pension benefits case. http://legal.european-patent-office.org/dg3/biblio/t950931ex1.htm Even though the method claim used software, it was not an invention.
I bet Sweetman had heard of it, but as you say ...
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
No it would not if the technical effect is as general as to cover all implemetations. It is only the wording and not the content what the EPO checks, so you just have to speak of server, client, signals, means, memory... and those are the only realisations possible for your algorithm, but you'll get a patent on it anyway.
EPO practice is to say that if an invention as a whole exhibits a technical effect, it is patentable (although you must also check novelty and inventive step). It is irrelevant whether software is part of the claimed invention. However, because then all attorneys will claim "software interacts with hardware and so it's always technical", they came up with the further technical effect that must be more than ordinary interaction.
This is EPO nonsense. Everything has a technical effect, if you don't require any novelty and inventiveness in the technical contribution.
Basically, if you ignore the fact that a step or feature is realized with software, and you still have a technical effect then you have a patentable invention.
If you ignore any innovation in the software, and still have a technical teaching, then it's worth a patents. That's how it used to be and how it should be.
what you present is like saying "if you ignore the fact that steps are taken by the driver, and the car still takes you from Munich to The Hague, you have a patentable car".
you can't ignore where is the innovation unless you want unlimited patentability (and the patent system in a crash course)
They seem to think it conforms to the letter.
They don't seem to be able to exaplin their thoughts in a rational way.
This sounds absurd to me. A patent prohibits use of an "invention". The main use of software is by programming a machine with it.
Yes, but the patent would prohibit the using or selling of the programmed machine. Not the act of programming.
The act of programming so that nobody can use the programmed machine does not need prohibiting, thanks.
If you can't patent the program but can patent any machine programmed to use it, then nobody can use a machine programmed with the program, so nobody can use the program, so the effect is the same as patenting the program, except for marginal uses (as an expressive work, or as mere transmitted ifnormation).
Exactly. But since it was believed in 1973 that software is not a "thing" (just like a blueprint isn't a "thing"), they made it clear it could not as such be patented. Just like you can't patent a blueprint, but you can patent a machine built in accordance with the blueprint.
To patent a machine built according to a blueprint it is not enough that the blueprint is new (for instance painted in red instead of black ink). The machine most be new and inventive. General computers are not new nor inventive anymore. So those apparatus or methods charaterized by having or used a general computer according to an (innovative) program, should not be patented.
If waht you propose is not patenting _any_ machine programmed with the software, then it is only fair to apply novelty and inventive step to the machine, not the software.
The tests should be applied to the programmed machine, not the unprogrammed machine. The software *in the machine* makes the difference.
So you would patent your favorite film, because the tape in the VCR makes the difference?. can you claim a method and apparatus for sending signals to a monitor so that the man says "nobody is perfect" and kisses the other man dressed as a woman and after that the message "the end" appears ?. Assume Marylin had not recorded that film yet and there's no such film. If you consider the tape in the VCR as a whole, it might be a patentable machine, wouldn't it?.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
If using software is not an innovation, changing the software on prior art machines can't do a novel and inventive thing.
If my computer, no matter with what peripheral attached, started to do novel things I would be a little afraid of ghosts.
A particularly programmed DSP works differently from an ordinary DSP. Why is it an invention if the programming is done with hardware chips, but not if it is done with software?
A particulary programmed DSP is just a ordinary DSP, and if it works different, it is broken. DSPs are done to be programmed, and working according to its program is its function. There's nothing novel in a new program
When I said "the innovation is in the software earlier" I meant the only reason prior art devices didn't do the same was because of a different software. That proves there is no new teaching on forces of nature, because we're using it according to the hardware we already had.
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.
My argument is the President can not decide tomorrow that the EPO is going to grant patent of sexual intercourse positions.
No, but he can instruct examiners that such methods are to be examined in a particular way. Just like he did with business methods and software.
No he can't. He can't tell the examiners to ignore exclusions on patentatability for social acts and games. Just as the head of the police can't order the policemen to arrest all people of a gender, color of skin or religion, even if it is their boss. Government officials don't have absolute power, they can only do what the law allows them to do.
Now you'll say he thinks he can. But if the head of the police thinks he can arrest me because of gender, religion or color, I won't give a damn about his thought and will try to get him to a court.
What the president decides must respect the EPC. Since the guidelines of 1978 respected the same EPC as we have now, reinstating them would be consistent with the EPC. More consistent than current guidelines.
Surely it is possible to update your guidelines if you have a new insight in how the EPC is to be interpreted? Furthermore, the prez has no choice. If the BoA says it's to be one thing, the examiners should adhere to that otherwise applicants are not treated fairly. And so the examiners should be instructed to do what the BoA said.
The President and the Board can't ignore the EPC. They can only move insdie the limits of the EPC. Do you think we'll get anywhere this way?. You think the EPO is acting legally, I think it's not.
Now it is no because the EPO does not follow the EPC. The solution if changing what the EPO does, not the rest.
That's one solution. Changing national laws so it follows the EPO's interpretation of the EPC is another. And it seems that's what the EU wants.
If the EPO interpretation was consistent with the EPC it would be an (undesirable for economical and ethical reasons) option.
Xavi Drudis Ferran wrote:
El Fri, Dec 13, 2002 at 02:35:16PM +0100, Arnoud Galactus Engelfriet deia:
Not really, but it comes close. The invention would be something like reducing the amount of fuel in a motor, which is technical, and this reduction is achieved by having a program compute the amounts in two separate fuel tanks or something.
Tanks are known, the motor is known, adding the amounts is known... You can draw up that patent without a laboratory, and without any investment in research that needs protection. It is not an invention.
You're saying it is obvious to combine these elements, and I agree with you there. So it is not _inventive_ to combine this. But is it in principle possible to patent a motor with a tank and some processing logic? Is it 'statutory subject matter' as the Americans call it?
And why is a laboratory necessary to make something patentable? If I have a brilliant new insight in how to apply a natural force to an existing device to make it work more efficient, surely I can patent that even if I don't have a lab?
The fact that it's done by a program is irrelevant. It would be the motor with its control means that would be the invention. And you can't prohibit what's outside the claims, so using the same solution for money reduction is not infringement.
Most software patents claim a computer programmed such that... or using a computer so that... claiming any computer using a program.
Using one particular program that would exhibit one particular behavior.
And even those that claim only a motor embedded computer, or anything, lack inventive step. The person skilled in the art knows there are motors, tanks, and computer that calculate whatever is needed. Combining them is straightforward.
So it is obvious. But is it statutory?
There are many inventions that today are known, or today would be deemed obvious. But surely the lightbulb or the diesel engine is an 'invention', even today?
What I'm saying is that "being an invention" is a requirement separate from "being nonobvious to a skilled person". You apparently combine the two. This seems awkward to me, because then you no longer have a way to distinguish between "this is in principle patentable but given the prior art it's obvious, and this is in principle not patentable".
How do you distinguish between something that is obvious because it uses a computer program, and something that is obvious because the prior art suggests to use that something?
It is my belief that a clever attorney can always redraft a claim to incorporate a technical effect, but then the claim will usually be much more limited in scope. It would be restricted to a particular implementation for example.
No it would not if the technical effect is as general as to cover all implemetations.
I don't understand what this means. Patents are *supposed* to cover all implementations ("embodiments") of an inventive idea. Otherwise it would be really easy to get around a patent.
Of course all covered embodiments would have to be novel and inventive. But I can have a patent on for example a motor coupled to a cam with a cam follower which drives a shaving head, and then you'll be unable to make any shaver which uses a cam with follower.
EPO practice is to say that if an invention as a whole exhibits a technical effect, it is patentable (although you must also check novelty and inventive step). It is irrelevant whether software is part of the claimed invention. However, because then all attorneys will claim "software interacts with hardware and so it's always technical", they came up with the further technical effect that must be more than ordinary interaction.
This is EPO nonsense. Everything has a technical effect,
That is not correct. Business steps, like computing the value of a stock portfolio or an interest rate, have no technical effect.
if you don't require any novelty and inventiveness in the technical contribution.
If there is no inventiveness in the technical contribution, the invention does not have an inventive step and hence it is obvious. But obvious things are still inventions - they are *in principle* patentable.
Today it is obvious to use a battery if you want to get rid of a power cable. Still, a device with a battery is in principle patentable. But if that's all, the device is deemed to be known or obvious and so the application is rejected.
On the other hand, a novel way to perform surgery is in principle not patentable, no matter how inventive it may seem to a surgeon skilled in the arts.
what you present is like saying "if you ignore the fact that steps are taken by the driver, and the car still takes you from Munich to The Hague, you have a patentable car".
Yes, sure. A car is by definition patentable because it is a device, an apparatus.
you can't ignore where is the innovation unless you want unlimited patentability (and the patent system in a crash course)
Something cannot be come non-statutory depending on the prior art. Or are you saying that in 1932 using a computer program to perform steps X, Y and Z would be an invention, but in 2002 it would not? That's crazy.
They seem to think it conforms to the letter.
They don't seem to be able to exaplin their thoughts in a rational way.
I just tried. You don't agree with their reasoning, but that doesn't make them any less rational.
Exactly. But since it was believed in 1973 that software is not a "thing" (just like a blueprint isn't a "thing"), they made it clear it could not as such be patented. Just like you can't patent a blueprint, but you can patent a machine built in accordance with the blueprint.
To patent a machine built according to a blueprint it is not enough that the blueprint is new (for instance painted in red instead of black ink). The machine most be new and inventive.
Of course. But the novelty would be illustrated in the blueprint according to which the machine is built. Just like the novelty of a programmed computer resides in the program.
Building a machine according to a blueprint so that you obtain a new and inventive machine is exactly the same as loading a computer program in a computer so that you obtain a new and inventive computer.
General computers are not new nor inventive anymore. So those apparatus or methods charaterized by having or used a general computer according to an (innovative) program, should not be patented.
Why not? If it makes the computer exhibit novel and inventive behavior, surely it's a different machine?
If waht you propose is not patenting _any_ machine programmed with the software, then it is only fair to apply novelty and inventive step to the machine, not the software.
The tests should be applied to the programmed machine, not the unprogrammed machine. The software *in the machine* makes the difference.
So you would patent your favorite film, because the tape in the VCR makes the difference?
Of course not. The film is like the program as such, it's pure data and not patentable.
. can you claim a method and apparatus for sending signals to a monitor so that the man says "nobody is perfect" and kisses the other man dressed as a woman and after that the message "the end" appears
According to the EPO, a VCR loaded with a tape is an invention but it is not new. After all, a VCR is a technical device.
It could be the contents on the tape is new, but the contents does not cause any further technical effect, so there is no inventive step.
?. Assume Marylin had not recorded that film yet and there's no such film. If you consider the tape in the VCR as a whole, it might be a patentable machine, wouldn't it?.
Sure. Aren't VCRs inventions?
The lightbulb is an invention today, not just when Edison came up with it. Today it is a *known* invention, but it's an invention nonetheless.
That is where we differ. I believe it is illogical to say "the innovation is in the software", because using software is not an innovation. Making a machine do a novel thing is an innovation, no matter how you make the machine do it.
If using software is not an innovation, changing the software on prior art machines can't do a novel and inventive thing.
"characterized in that it uses software" is not an inventive step. But "characterized in that it performs steps X, Y and Z" could be inventive, assuming X, Y and Z are not obvious. I don't care whether software is involved.
If my computer, no matter with what peripheral attached, started to do novel things I would be a little afraid of ghosts.
So you never load any software in your computer?
A particularly programmed DSP works differently from an ordinary DSP. Why is it an invention if the programming is done with hardware chips, but not if it is done with software?
A particulary programmed DSP is just a ordinary DSP, and if it works different, it is broken. DSPs are done to be programmed, and working according to its program is its function. There's nothing novel in a new program
If I have two DSPs, and I program them with different software, I now have two differently acting devices. You are saying they are identical?
When I said "the innovation is in the software earlier" I meant the only reason prior art devices didn't do the same was because of a different software. That proves there is no new teaching on forces of nature, because we're using it according to the hardware we already had.
Your conclusion does not follow from the facts you've given. Why is by definition no new teaching on forces of nature obtained? It's too easy to say "it's software therefore there cannot be teaching on forces of nature", because that is the very thing we are discussing.
No, but he can instruct examiners that such methods are to be examined in a particular way. Just like he did with business methods and software.
No he can't. He can't tell the examiners to ignore exclusions on patentatability for social acts and games.
Yes he can. It's his job to tell examiners what to do. And if the BoA tells him that something is *not* excluded, there is nothing wrong with instructing examiners to allow patents on that something.
Just as the head of the police can't order the policemen to arrest all people of a gender, color of skin or religion, even if it is their boss.
If the Supreme Court says it is legal to arrest people based on gender or religion, then the head of the police most definitely can issue such orders.
Government officials don't have absolute power, they can only do what the law allows them to do.
And if the courts say that it is allowed by the law, what is the official to do?
Now you'll say he thinks he can. But if the head of the police thinks he can arrest me because of gender, religion or color, I won't give a damn about his thought and will try to get him to a court.
And if the Supreme Court says "yes, it is legal to arrest you because of your gender", then what?
The President and the Board can't ignore the EPC. They can only move insdie the limits of the EPC. Do you think we'll get anywhere this way?. You think the EPO is acting legally, I think it's not.
I agree that we see this fundamentally differently. But please understand that they believe they *are* operating in accordance with the EPC.
Let me ask you this question. If the European Court for Human Rights says it's legal for police to arrest someone because he is a Catholic, would it be within the law to arrest Catholics?
This is, I think, the basic issue. You are saying that it would not be within the law, and the ECHR is acting illegally. I am saying that *because* the ECHR says it is legal, it is within the law. Even if my understanding of the law is different. If I disagree with the ECHR, I will have to lobby to get the law changed.
Kind regards,
Arnoud Engelfriet