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European Commission Reverses its Views on Patents

samzenpus posted more than 8 years ago | from the maybe-not dept.

EU 181

prostoalex writes "ZDNet UK News reports "The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law". Politician Adam Gierek posted a question to European Commission asking the institution to clarify its standings on software patents."

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181 comments

Clarify please? (3, Interesting)

geminidomino (614729) | more than 8 years ago | (#15399220)

Does this mean they reversed last week's decision, or that last week's decision WAS the reversal?

Re:Clarify please? (3, Funny)

Anonymous Coward | more than 8 years ago | (#15399300)

Yes.

Re:Clarify please? (1)

masterzora (871343) | more than 8 years ago | (#15399603)

Oh, come on. If the parent is OT, so is the GP.

Re:Clarify please? (4, Funny)

AEton (654737) | more than 8 years ago | (#15399342)

This means that software can now patent people.

Re:Clarify please? (5, Funny)

cp.tar (871488) | more than 8 years ago | (#15399374)

So in European Union, YOU reverse "in Soviet Russia" jokes!

Wait a sec, something just doesn't seem right...

Re:Clarify please? (0)

Anonymous Coward | more than 8 years ago | (#15400063)

No, it means you can't reserve "in Soviet Russia" jokes, because they're not hardware.

Re:Clarify please? (1, Informative)

ultranova (717540) | more than 8 years ago | (#15400233)

So in European Union, YOU reverse "in Soviet Russia" jokes!

In European Union, Soviet Union laughs at you !

I don't think even Stalin suggested making a directive forbidding grilling sausages or burnign wood for warming - and, of course, here in Finland we use 4 million euros a year to catch 0.5 million euros worth of misuse of Union subsidies, and the Union wants us to use more.

I'm starting to think that joining the European Union was a bad mistake, especially since it means free trade which harms local economy and increases unemployment.

Re:Clarify please? (4, Insightful)

zoney_ie (740061) | more than 8 years ago | (#15400289)

The European Union is ultimately important most of all for political reasons. It is bringing European countries closer together.

For some countries, it has been invaluable - e.g. in the case of Ireland. That is, not just economically, but from a point of view of being involved, not just a small isolated backward country on the outskirts of Europe. While not an equal to large European States, the country (and other small EU members) are far closer in status to the big countries than they would be outside the European Union.

The EU is also about offering help for countries to improve themselves. Sure, some countries haven't done so well (Portugal, Greece) but they might be worse off but for the EU. And it is important for every country to have at least somewhat as well-off neighbours. One doesn't want a US-Mexico situation.

At least some of the Central and Eastern EU members are already making great strides towards catching up with the rest of the EU.

I do not understand those who don't see how this benefits Europe as a whole, even those who could easily "go it alone" (e.g. UK). Besides, some of the complainers, their problem is they aren't making the best of the EU (look again at the UK - they could do so much better from all the openings that having 24 other members has).

Re:Clarify please? (0, Redundant)

ikejam (821818) | more than 8 years ago | (#15399441)

Scarily enough, I can actualy imagine that scenario :-s

Re:Clarify please? (1)

scovetta (632629) | more than 8 years ago | (#15400324)

This means that software can now patent people.

Only in Russia, my friend.

Really? (-1, Offtopic)

cbiltcliffe (186293) | more than 8 years ago | (#15399224)

F'ing A. About F'ing time. And a bunch of other stuff.

Including First Post.

Re:Really? (-1, Offtopic)

cbiltcliffe (186293) | more than 8 years ago | (#15399240)

Or, it would have been first post, if it didn't take 45 seconds to log in. :(

Re:Really? (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15399383)

Get over it buddy, no big deal, there are lots of new posts everyday, keep on tryin' and don't be a cry baby. You'll get what you deserve in the end.
btw, England sucks.

Re:Really? (-1, Flamebait)

Anonymous Coward | more than 8 years ago | (#15399415)

fag

Re:Really? (0)

Anonymous Coward | more than 8 years ago | (#15399889)

Yes, please. Got any Bensons?

Pretty sure the reporter has it wrong... (5, Informative)

morganew (194299) | more than 8 years ago | (#15399244)

Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"

Article 28.1 of the draft Community Patent Regulation provides that a community patent can be invalidated on the grounds that the subject matter of the patent is not patentable in accordance with Article 52 of the Munich Convention (that is, the European Patent Convention). Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

If the community patent regulation were actually adopted in its current form, one would be able to get and keep patent protection for computer software-implemented inventions in the same manner that it is currently possible under the European Patent Convention.

Unless the Commission is putting for a new version of Article 28.1 of the draft Community Patent Regulation that specifically repudiates the "as such" language in Article 52 of the European Patent Convention, the situation is the same as it ever was.

relevant text of orginal EPO Docs:

Methods of doing business are, according to Article 52(2) EPC, not to be considered to be inventions. Although not explicitly stated, this exclusion is also considered to apply to a wide range of subject-matters which, while not literally methods of doing business, share the same quality of being concerned more with interpersonal, societal and financial relationships, than with the stuff of engineering - thus for example, valuation of assets, advertising, teaching, choosing among candidates for a job, etc.. The term "business methods" has become a generally used shorthand for all of these areas.
Claims for business methods can be divided into three groups:

claims for a method of doing business in abstract, i.e. not specifying any apparatus used in carrying out the method;
claims which specify computers, computer networks or other conventional programmable digital apparatus for carrying out at least some of the steps of the business method ("computer-implemented business methods");
claims which specify other apparatus (perhaps in addition to computers) e.g. mobile telephones. ,/i>

Re:Pretty sure the reporter has it wrong... (4, Informative)

Anonymous Coward | more than 8 years ago | (#15399331)

Right. The way I read the .doc file, all they are saying is,

1. the new "EPC" law/framework will simply reconfirm that the EPO is bound by law, rather than just doing whatever it wants;
2. and as such, any patent can be appealed in court if someone thinks the EPO overstepped its boundaries.

It does not really say anything about what those boundaries are. In fact it reads more like "we're still thinking about that".

Part of the .doc quoted for great justice (and to avoid the need for a .doc compatible viewer, wtf, it's just a bit of text) -- emphasis added :

Moreover, with respect to the particular cases mentioned by the Honourable Member, the draft Community patent Regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC, may be invalidated in a relevant court proceeding.

This being said, the Directorate-General for the Internal Market and Services has launched a broad consultation of all interested parties on the future patent policy in Europe, with a particular focus on the structure of the European patent system. The Community patent, including the common political approach which was reached by the Council on 3 March 2003, forms part of the questions addressed to all stakeholders. The deadline for the consultation was 12 April 2006 and preliminary findings will be discussed with stakeholders at a hearing in Brussels that will most probably take place in June 2006. The Parliament will of course be duly informed of the results of this consultation.


So, meh :\

--peirz

Re:Pretty sure the reporter has it wrong... (4, Informative)

Tough Love (215404) | more than 8 years ago | (#15399364)

Pretty sure the reporter has it wrong... Europe has never allowed 'software patents' instead, they allow "Computer Implemented Inventions

What actually happened is "the European Commission has confirmed that the European Patent Office's (EPO) case law is not binding for member states... For the first time, the Commission has also clearly stated that computer programs are not patentable subject matter, without hiding behind the infamous "as such" cop-out."

Go to a reputable source [ffii.org] for this if you want accuracy: European Commission: EPO Case Law Not Binding - Software Not Patentable. [wiki.ffii.de] .

This is a great development, it's far from the end of the story.

Re:Pretty sure the reporter has it wrong... (3, Informative)

Arker (91948) | more than 8 years ago | (#15399507)

Thanks.

I reckon it was a little passive-aggressive outburst that caused them to give the answer in a .doc file instead of a standard format of some kind. Not happy campers about having to give up the power and prestige that would have accrued them if their desired interpretation had been accepted.

Fortunately a readable copy is to be found a click or two from the page you linked, here [ffii.org] so now us long-haired smellies can read it too.

Re:Pretty sure the reporter has it wrong... (1, Informative)

Anonymous Coward | more than 8 years ago | (#15399963)

This is a great development, it's far from the end of the story.

Exactly. A part of the Commission's answer that I can't find references to in the press release is the last paragraph, which says just that:
This being said, the Directorate-General for the Internal Market and Services has launched a broad consultation of all interested parties on the future patent policy in Europe, with a particular focus on the structure of the European patent system. The Community patent, including the common political approach which was reached by the Council on 3 March 2003, forms part of the questions addressed to all stakeholders. The deadline for the consultation was 12 April 2006 and preliminary findings will be discussed with stakeholders at a hearing in Brussels that will most probably take place in June 2006. The Parliament will of course be duly informed of the results of this consultation.

So, "far from the end of the story" seems quite accurate.

Granted patents can just be invalidated (2, Insightful)

Poingggg (103097) | more than 8 years ago | (#15400058)

From TFA:
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding ." (emphasis mine)

So patents can still be granted, but you have to go to court to have them invalidated, a step too costly for most of us. Nice way of weaseling out and make everyone happy for the time being....

Re:Pretty sure the reporter has it wrong... (5, Informative)

Anonymous Coward | more than 8 years ago | (#15399519)

Article 52 of the Europen Patent Convention provides that computer software "as such" is not patentable subject matter.

Although not completely inaccurate, that's pretty misleading as the way you've arranged the words gives the impression that there's no clear exclusion of software patents. What Article 52 [european-p...office.org] actually says is:

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.


That final "as such" has indeed been used by the EPO as a loophole to allow software patents but in the actual Convention it applies as much to e.g. presentations of information or to aesthetic creations as it does to software.

In practice the EPO has applied it in relation to software in a manner that permits software patents in general.

The wording probably could be used to justify certain exceptions to the general prohibition on software patents (or patents on presentation of information etc.) but I don't believe that it can in good faith be used to render the explicit prohibition on software patents irrelevant.

Can any supporters of the EPO's stance give examples of things which would have been patentable had the EPC not explicitly excluded computer programs from being regarded as inventions, but which the EPO treat as non-patentable as a result of that exclusion?

Re:Pretty sure the reporter has it wrong... (1)

scsa (929805) | more than 8 years ago | (#15399951)

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

The EPO lets you patent a thought process?

Re:Pretty sure the reporter has it wrong... (2, Informative)

Chowderbags (847952) | more than 8 years ago | (#15400050)

It's under section 2, which states "The following in particular shall not be regarded as inventions within the meaning of paragraph 1:"

In other words, no.

Re:Pretty sure the reporter has it wrong... (1)

scsa (929805) | more than 8 years ago | (#15400188)

Aha... RTFP, me.

Re:Pretty sure the reporter has it wrong... (1)

Eunuchswear (210685) | more than 8 years ago | (#15400244)

Not as such, no. :-)

Re:Pretty sure the reporter has it wrong... (1)

ajs318 (655362) | more than 8 years ago | (#15399985)

Well, 2(a) specifically excludes mathematical methods from the scope of patentability. A computer program that does something useful is almost certainly based around a mathematical method. In fact, things like compression and encryption algorithms are mathematical methods. A person with crayons, graph paper and plenty of time on their hands could look at a hex dump of a GIF file and draw the picture it described. There is no doubt in my mind that they would be performing a mathematical operation, which is rightly unpatentable. A person with enough paper and enough patience might even be able to study a hex dump of an MP3 file and write out a set of numbers which would form a corresponding raw PCM file. Writing it out in musical notation would be pushing it some.

Likewise, encryption is a mathematical operation and so not patentable. Look at Bruce Schneier's Solitaire [schneier.com] for an example of non-computerised data encryption.

Re:Pretty sure the reporter has it wrong... (1)

SillyNickName4me (760022) | more than 8 years ago | (#15400082)

is almost certainly based around a mathematical method

While the mathematical method is not patentable, a novel way of using it in a device might well be.

Re:Pretty sure the reporter has it wrong... (1)

julesh (229690) | more than 8 years ago | (#15400189)

Go back and read the article again. Yes, mathematical methods are not patentable "to the extent that [the method] relates to [mathematical methods] as such". So, a patent granted on such a method couldn't prevent somebody else from performing the same mathematical process. But include it in a broader application and you may be onto a winner. If I were to invite a way of factorizing prime numbers in linear time, for example, I wouldn't be able to patent it. I might be able to patent its inclusion in a device that automatically intercepts and decrypts communications transmitted using RSA encryption, though.

Re:Pretty sure the reporter has it wrong... (1)

ajs318 (655362) | more than 8 years ago | (#15400254)

Yes, but some other device that intercepted and decrypted communications would not necessarily infringe on your patent. The patent doesn't cover the underlying mathematical operation. You can patent a new type of toaster, but they all depend on the same underlying principle: that carbohydrates, when heated, decompose to give carbon and steam. That's a law of nature and can't be patented. So, just changing a few superficial details of the device would be enough to get around the patent.

By the way, prime numbers already can be factorised in linear time. If p is any prime number, its factors are 1 and p, and this always takes the same time to determine regardless of p {though the time required to announce the factors is proportional to log p, since it depends upon the number of digits}. I think you meant determining the factors of numbers which are known to be products of two primes.

BTW, need you do the factorisation in isolation?

Re:Pretty sure the reporter has it wrong... (1)

Halo1 (136547) | more than 8 years ago | (#15400052)

Can any supporters of the EPO's stance give examples of things which would have been patentable had the EPC not explicitly excluded computer programs from being regarded as inventions, but which the EPO treat as non-patentable as a result of that exclusion?
Well, I'm everything but a supporter of the EPO's stance, but one example could possibly the source code or machine of a program on its own (i.e., not stored on a disc or in memory).

Now, don't ask me what the point of such a patent would be (after all, a program is always stored somewhere), why someone would want to pay for something like that (after all, exactly the same thing is already covered by copyright) and therefore why anyone would bother with putting such an exclusion into law, but that's how the EPO's Technical Board of Appeals currently interprets the term "computer program" as it appears in the European Patent Convention.

Re:Pretty sure the reporter has it wrong... (2, Informative)

Halo1 (136547) | more than 8 years ago | (#15400038)

Europe has never allowed 'software patents' instead, the allow "Computer Implemented Inventions"
And what is the difference? According to the European Patent Office's Technical Board of Appeal [european-p...office.org] , as soon as you execute software on a computer, whatever the software does is a "computer-implemented invention" (see the top of p. 13 of the pdf file, the page numbered 11).

When was the last time you saw a US software patent which was not on what software does when it's executed, but on the source or machine code? Right. IOW, there is no inherent difference between software patents and patents on "computer-implemented inventions".

Does this mean patent immunity for EU corps? (5, Interesting)

ArghBlarg (79067) | more than 8 years ago | (#15399249)

Can EU-based companies then freely do work to interoperate/reverse-engineer things made by the (insane) US software industry? I hope to $DIETY so. This would force the US software industry to actually focus on quality and usefullness instead of paying lawyers to lock the latest trivial feature up in patents.

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15399345)

Hehehe ... quality is lacking in USA?

Given the fact that 90% of worthwile software comes from USA , I think they are doing something right.

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15399605)

Examples and citations please!

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15399674)

90% ?

this is the most stupid comment on slashdot i read today :D
most linux stuff is written in europe, and most brand new software comes from asia.
united states slayed it's software business and initiatives years ago, all that are left are big companies that haven't released anything in the last 4 years.

90% my shiny metal ...

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15399888)

Don't forget - Microsoft software comes from America...

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15400039)

Let's not turn this into a US vs EU thing. The patent system in the US is fucked up and here in Europe we are fighting not to adopt a similar system. If the EU achieves this, a software-patent-free union will benefit US developers also, giving them a market to deploy their work. We need US contribution and frankly in Open Source, any contribution is good. So, just as we shouldn't be distracted into thinking the EU vs Microsoft case is an EU vs US one, in the same way the common goal here should be to ban software patents. They are only used against 'innovation' anyway, as it has been proven time and time again...

Re:Does this mean patent immunity for EU corps? (2, Insightful)

Anonymous Coward | more than 8 years ago | (#15399455)

RIM did all research and development in Canada, then got sued in the US after they started selling their device in the US. US patent law has no power anywhere but in the US, unless your company wants to do something weird like sell the product in the US.

Re:Does this mean patent immunity for EU corps? (3, Interesting)

Chowderbags (847952) | more than 8 years ago | (#15400059)

That leads me to ponder something: If a European company distributed software that contained US patented code over the internet (and thus not having a physical presence in the US), how would that court case go? Assuming that they were found in the wrong, would there even be a way to get damages (short of pulling another Dmitry Sklyarov)?

Re:Does this mean patent immunity for EU corps? (1)

Tony Hoyle (11698) | more than 8 years ago | (#15400323)

Extratition probably, followed by nice orange jackets for a few dozen years.

Re:Does this mean patent immunity for EU corps? (2, Interesting)

Arker (91948) | more than 8 years ago | (#15399518)

They can, but they'll run into problems if they try to sell any such products over here, which will neuter the effect somewhat.

Re:Does this mean patent immunity for EU corps? (1)

geminidomino (614729) | more than 8 years ago | (#15400136)

What about FOSS software made available from European servers?

Re:Does this mean patent immunity for EU corps? (1)

julesh (229690) | more than 8 years ago | (#15400202)

Using it for anything other than personal experimentation in order to try to understand the patented methods would be a patent violation. Although you could argue that not understanding how it worked you weren't aware there was a patent violation, and therefore cannot be held liable, the accessibility of the source code might work against you here; it could be held in a court that as information about how the product worked was available it was your responsibility to check that it didn't infringe patents. Also, the act of compiling it may or may not be interpreted as manufacturing, which is also prohibited I believe.

But this does happen. Do you use mplayer? That's distributed by this method, despite containing a large number of codecs that are patented in the US.

Re:Does this mean patent immunity for EU corps? (1)

pato101 (851725) | more than 8 years ago | (#15399648)

I hope to $DIETY so.

So... you are on a diet. aren't you?

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15399890)

I'm sure most pear-shaped slashdotters (me among them) pray to $DIET-Y quite frequently.

Re:Does this mean patent immunity for EU corps? (0)

Anonymous Coward | more than 8 years ago | (#15400079)

You don't have to reverse egineer something that is patented. You just read the patent, and that's all. You need a license to *use* that knowledge.

Well, you have to actually *understand* the patent. This is the hard part, because they are carefully worded so no engineer can understand them, only lawyers.

Don't break out the champagne just yet ... (4, Insightful)

ScrewMaster (602015) | more than 8 years ago | (#15399255)

European Commission Reverses its Views on Patents

For now. This has gone back and forth so many times I feel like I'm watching a game of ping-pong. There are enough powerful interests involved that this issue that continued vigilance will be required.

Re:Don't break out the champagne just yet ... (3, Funny)

martin-boundary (547041) | more than 8 years ago | (#15399443)

10 PRINT "Dude, what does mine say?"
20 PRINT "Sweet, what does mine say?"
30 GOTO 10

Reversed their decision, have they? (1, Funny)

NTiOzymandias (753325) | more than 8 years ago | (#15399258)

Well then I hope I'll be the first to exclaim...

BELGIAN WAFFLES!!!

(even though I seem to remember having this stance pretty much all along...)

Re:Reversed their decision, have they? (2, Informative)

bmcage (785177) | more than 8 years ago | (#15399887)

Waffles are from Brussels or Liege, so Brussels Waffles, please.

waffles!? (2, Informative)

bobamu (943639) | more than 8 years ago | (#15400182)

brussels is in belgium.
liege is in belgium.
waffles made in either of those two places are in belgium.
belgian waffles come from belgium.
everything comes from belgium!!!

You might find that other countries have the technology to make waffles.

Also, french fries come from belgium.
This is all very confusing and pointless.
-1, Redundant please.

what?????? (0, Interesting)

Anonymous Coward | more than 8 years ago | (#15399289)

Sometimes thing like this is hard to follow; kind of like following Bush explain why to invade Iraq. You really are not certain what and why, and how bad the lies are? Finally, you have to wonder WHO is going to make out on this and how.

Re:what?????? (-1, Redundant)

ScrewMaster (602015) | more than 8 years ago | (#15399354)

What does the World Health Organization have to do with this?

Re:what?????? (0)

Anonymous Coward | more than 8 years ago | (#15399375)

What does who have to do with this?

Re:what?????? (2, Funny)

ozmanjusri (601766) | more than 8 years ago | (#15399573)

What does who have to do with this?

They're on first.

Pressure? (4, Insightful)

WalksOnDirt (704461) | more than 8 years ago | (#15399434)

I have to wonder if the corporate lobbying pressure has shifted as the big players have been hit with more and more patent infringement lawsuits in the USA. Of course the free software complaints must have helped, but I've always had the impression that these bureaucrats listened more to industry.

Re:Pressure? (1)

Null Nihils (965047) | more than 8 years ago | (#15399451)

I've always had the impression that these bureaucrats listened more to industry.

Really? I haven't noticed that.

*COUGH*

Re:Pressure? (5, Insightful)

Anonymous Coward | more than 8 years ago | (#15399790)

The EU software industry consists mostly of smaller companies that would be hurt by allowing for software patents. Only companies such as Microsoft, Nokia and Siemens were lobbying pro-patent as far as I recall. It might just be the EU Commision have learned to ignore the Irish commisioner, who is heavily pro-Microsoft due to the company's presence in his country.

It will be nice to see (5, Interesting)

Null Nihils (965047) | more than 8 years ago | (#15399442)

a steady flow of independent innovation pouring in to the UK if they do end up getting rid of the illogical legislation standing in the way of software progress (I will refrain from using the word "innovation").

Microsoft (and anyone else commanding a patent arsenal) are saying the opposite, of course; that the market will shrink, not expand. It sure would be nice to see them eat their words if the UK does continue in a no-software-patents direction and smaller, more inventive companies take advantage of their new freedom.

Re:It will be nice to see (2, Funny)

fishybell (516991) | more than 8 years ago | (#15399515)

I will refrain from using the word "innovation"

No you won't, and I quote, "innovation."

Re:It will be nice to see (1)

TempeTerra (83076) | more than 8 years ago | (#15400139)

>>I will refrain from using the word "innovation"

>No you won't, and I quote, "innovation."

Ah but, to make a point that nobody cares about, he wasn't _using_ the word "innovation", he was _mentioning_ it as evidenced by the double-quotes.

Re:It will be nice to see (0)

Anonymous Coward | more than 8 years ago | (#15400043)

It will be nice to see a steady flow of independent innovation pouring in to the UK [...] (I will refrain from using the word "innovation").

Whoops.

Thank goodness (1)

DivineOmega (975982) | more than 8 years ago | (#15399466)

A good suggestion. I heard, not from the most reliable source, that Microsoft tried to copyright the double click as 'a method by which to use a pointing device to activate a user interface component via the tapping of a button two times by the user' or something similar.

Re:Thank goodness (4, Informative)

afaik_ianal (918433) | more than 8 years ago | (#15399554)

For anyone who didn't cringe at that post (and I'm talking about the wording of the post, not what MS did or didn't do), please read COPYRIGHT vs. TRADEMARK vs. PATENT [lawmart.com] before taking part in this discussion.

Re:Thank goodness (1)

DivineOmega (975982) | more than 8 years ago | (#15399939)

Apologies for that post. It was terrible I have to admit. It should have read 'patent', and why I explained what a double-click was to reader's of Slashdot is a mystery...

Re:Thank goodness (1)

prlewis0 (923708) | more than 8 years ago | (#15400159)

Slashdot readers use mice? 8-0 Lynx, Vi, Bash!!! Grr....

It's about time (1)

thegattaca (927567) | more than 8 years ago | (#15399521)

I was wondering when someone would figure this one out . . .

OH . . . the sweet winds of change . . . it's about time.

America says: Size Matters. Europe Disagrees? (3, Interesting)

Codename.Juggernaut (975811) | more than 8 years ago | (#15399546)

As it was once said:

Any computer program or file, when saved, is a massive binary number set up for a computer to interpret. In effect, this large, multi-million-digit number is all a program or file is. The rest is simply representation and imagination. In fact, that's what "digital" means.

Now, you cannot patent fact, and numbers are fact. I cannot patent the number 7 and sue anyone who uses it (yet), since the number 7 simply is. I didn't invent it, it's always been there (let's not dabble too far into philosophy though), and as far as I'm aware, there is no rule of thumb to say "the number 12 cannot be patented, but the number 110101010111001E3,000,000" can.

Any program or file ever written/saved on a computer can be compiled and decompiled into a giant binary number. (That's simply how it's stored) So technically, by the law that a number cannot be patented, neither can any digital representation of anything.

Does this really factor down into a ruling of whether the size of a number makes it any less a number?

Re:America says: Size Matters. Europe Disagrees? (2, Insightful)

John Nowak (872479) | more than 8 years ago | (#15399566)

Any idea, typed up, can be reproduced in binary. I don't see what that has to do with anything.

Re:America says: Size Matters. Europe Disagrees? (1)

Peter Cooper (660482) | more than 8 years ago | (#15399568)

Using your logic, you can put practically any idea down to a single number, via text. You could convert a song into a number or a photo into a number and claim that you're merely telling people a number rather than actually copying Metallica's latest MP3 around.

Of course, you'd be clearly trying to cover something up, and they'd be able to prove it. The law is imprecise at the best of times, so applying strict logic to its potential is like trying to divine a law of how women work.

Re:America says: Size Matters. Europe Disagrees? (2, Funny)

Lussarn (105276) | more than 8 years ago | (#15399679)

is like trying to divine a law of how women work.

You think of a man, and then you take away reason and accountability.

Re:America says: Size Matters. Europe Disagrees? (1)

geminidomino (614729) | more than 8 years ago | (#15400141)

I recognized that quote... I'm scared...

Re:America says: Size Matters. Europe Disagrees? (1)

joss (1346) | more than 8 years ago | (#15399722)

Copyright and patents are different dude, Metallica's songs are not patented afaik. I get what you're saying, but your crticism is almost as misguided as the original.

Re:America says: Size Matters. Europe Disagrees? (1)

jabuzz (182671) | more than 8 years ago | (#15400263)

Indeed, 20 years ago I wrote a program for a ZX Spectrum that displayed on screen every possible ASCII screen. I never ran the program right through, and got tired of seeing just random junk. However I here by claim that since this time every book, song, computer program, you name it is mearly a copy of the output of my program. Therefore I cannot possibly be infringing on anyone interlectual property. Indeed they have mearly stolen the output of my program.

Re:America says: Size Matters. Europe Disagrees? (1)

old man moss (863461) | more than 8 years ago | (#15399974)

Patents don't deal with any specific representation, copyrights do.

A patent is an abstract generalisation of an idea, which must have a "technical effect". You can't patent the code "0101111000" but you can patent a "method of counting pips in an apple". You only have to describe an actual implementation as an illustration; the guts of the patent are the "claims" which are implementation-independent.

This is how lawyers patent software in the UK. You patent a "machine" which performs a sequence of steps. Then you can argue later that software running on a computer is an embodiment of that machine and infringes your patent.

I am not a lawyer. I have worked with a few... and helped to patent software. [I'm sorry]

Re:America says: Size Matters. Europe Disagrees? (0)

Anonymous Coward | more than 8 years ago | (#15399990)

Any program or file ever written/saved on a computer can be compiled and decompiled into a giant binary number. (That's simply how it's stored) So technically, by the law that a number cannot be patented, neither can any digital representation of anything.

So, with this logic anything written on paper cannot be patented, either, cause technically you can't patent the alphabet. Good luck applying for any patent, I've heard that they should be submitted as written down on paper.

Contrarian view (5, Insightful)

xkr (786629) | more than 8 years ago | (#15399588)

It used to be that inventions were made out of motors, belts, pulleys, and such. Consider the cotton gin, or the sewing machine. Now, inventions are made with computer programs, web interfaces, java beans, relational databases, flash. The real tests (used to be): is it novel? It is useful? More than ever, those hundred-year-old requirements still make perfect sense. Patenting the obvious is just as bad an idea now as it ever was.

In the heyday of railroads, new patents were being issued every few hours on improvements in track shape and airbrakes. The parts of the patent system that are broken, or badly in need of a tune-up, are not related to computer programs, they are related to issues of proper review, rational litigation, and what should be public disclosure of licensing, and mandatory licensing.

Patent law actually requires "fair licensing." After all, the whole point of patents was to get inventions INTO the public domain, not to promote monopolies. Its just that courts have long since given up trying to assess fair licensing, so we have forgotten that half of the original formula.

Re:Contrarian view (2, Insightful)

NutscrapeSucks (446616) | more than 8 years ago | (#15399828)

In the heyday of railroads, new patents were being issued every few hours on improvements in track shape and airbrakes.

It's a point that's often ignored. Pretty much every mechanical device you can think of was the subject of a patent at one time. I picked up a used book [amazon.com] that goes into excrutiating detail about the 1000s of patents that were filed regarding mundane things like bakeries (conveyor belt+oven=patent. obvious, no?). In 20 years, software patents may be largely a non-issue for most computing users.

The parts of the patent system that are broken, or badly in need of a tune-up, are not related to computer programs, they are related to issues of proper review, rational litigation, and what should be public disclosure of licensing, and mandatory licensing.

At least in the US, there appears to be a growing constituancy that agrees with this. However the discussion here is usually dominated by the No Patents crowd.

Re:Contrarian view (2, Insightful)

kanweg (771128) | more than 8 years ago | (#15399857)

The first problem with software is that it usually IS novel. In real life we have photo's, digitize it and you can process it in a digital dark room, a.k.a. Photoshop. You've brought something into a virtual world. And in virtual worlds just about anything is possible. You don't require even a glass of beer to come up with new ideas (the problem is never to come up with new ideas, the problem is to implement the ideas. It took MicroSoft until 1995 until they had a workable copy of Mac OS of 1984; Linux hasn't reached that point yet; OpenOffice hasn't reached the ease of use of MS Office (fortunately they haven't reached the level of bugs either). Ordinary inventions do have to be described in a way that an ordinary person skilled in the art can work the invention without undue effort. For software inventions he has to do just about the same amount of effort.

Because there is no prior art, you would satisfy the criterion of novelty. No prior art? Well, you know how software is documented, don't you. And

Usefulness is not a criterion of any patent law, as far as I know (PCT, EPO and Dutch patent law don't require this).

The only software-related inventions I can think of are those that have to do with compression. I can tell a program to write any program I want, but I can't ask him to write a program that compresses x times while maintaing a certain amount of quality. Only if he has the algorithm can he do it. But algorithms are excluded from patentability too.

There is no such thing as fair licensing. We used to have that in the Netherlands, it could rarely be used. These days the criteria to get such a license are even harder.

As you say, the whole point of patents is that inventions go into the public domain. Well, for software there is no indication that people would sit on it if they couldn't get a patent on it. So, the patent law doesn't need to be there, and certainly not for 20 years, because there will be very very few software-related "inventions" that are still important after 20 years. So, society would never benefit from the invention going into the public domain.

I'm a patent agent, and I don't see any reason why software should be patented, and I'm quite upset that they EPO interprets this article in such a way that software patents are possible.

Bert
Photoshop takes veeerrrrrryyyyy long to start up, but that is just because of all the patent numbers Adobe wants to show you.

Seems like too early to say much (0)

Anonymous Coward | more than 8 years ago | (#15399590)

The answer to the question (to which the article has a link) states (after two or three indecipherable paragraphs) that "the Directorate-General for the Internal Market and Services has launched a broad consultation of all interested parties on the future patent policy in Europe, with a particular focus on the structure of the European patent system," and also that "... the deadline for the consultation was 12 April 2006 and preliminary findings will be discussed with stakeholders at a hearing in Brussels that will most probably take place in June 2006."

Sounds like that's good for open source... (0, Offtopic)

Sheetrock (152993) | more than 8 years ago | (#15399601)

But I'm still not clear on how if you actually want to make a living selling software you create you can do so without being able to claim an intellectual property right.

I know there are some success stories with selling support or other non-duplicateable services but that seems to suggest less serious attention to user interface design and such may become standard software practice.

Re:Sounds like that's good for open source... (2, Insightful)

tankbob (633230) | more than 8 years ago | (#15399615)

By your arguement how can someone make a living writing fictional stories? Are you saying that Agatha Christie should be able to patent the idea of a dective story where all the suspects are gathered together in the room at the end by a solo detective and the murderer is revealed?

Poirot, Miss Marple etc are protected by Copyright not Patents. The same is true of software. Someone can't directly copy your software but they can produce their own implementation aslong as they don't directly copy your code.

Re:Sounds like that's good for open source... (4, Insightful)

Tough Love (215404) | more than 8 years ago | (#15399630)

I'm still not clear on how if you actually want to make a living selling software you create you can do so without being able to claim an intellectual property right.

Copyright gives you all the protection you need. Branding and customer loyalty from consistently good products and consistently good service will work wonders too.

Re:Sounds like that's good for open source... (1)

zpok (604055) | more than 8 years ago | (#15399655)

How about this: put a good GUI on an Open Source program, provide a good manual and sell installation/update/upgrade services?
While real programmers know GUI's and manuals are for sissies, so you must be a fraud to do this, real GUI guys know it's a lot of work and in a lot of ways mean the difference between sale or ridicule...

Disclaimer: I am actually doing this with moderate success. It's still early days, can't say if it's viable.

Re:Sounds like that's good for open source... (2, Informative)

ajs318 (655362) | more than 8 years ago | (#15400022)

Hey, who ever said there was a living to be made selling software?

You won't earn much money running a pay toilet in a forest. And the people who used to fit oil lamps to horse-drawn carts have had to find something else to do. In 30 years time, there won't be any oil left in the ground.

Fact: you don't have an automatic right to get paid for whatever you do. Get over it.

Re:Sounds like that's good for open source... (3, Insightful)

c0l0 (826165) | more than 8 years ago | (#15400262)

I collect quotes from various sources, and one of my favourites says:

"There has grown up in the minds of certain groups in this country the notion
that because a man or a corporation has made a profit out of the public for a
number of years, the government and the courts are charged with the duty of
guaranteeing such profit in the future, even in the face of changing
circumstances and contrary public interest. This strange doctrine is not
supported by statute nor common law. Neither individuals nor corporations have
any right to come into court and ask that the clock of history be stopped, or
turned back, for their private benefit."
- The Judge in "Life-Line"

Very well-fitting to the insightful comment you made.

The problem is the length of patents (1, Interesting)

miyako (632510) | more than 8 years ago | (#15399673)

Though many on slashdot may claim it is blasphemy to say this, I do not think that patents are nessessarily a bad thing. In fact, I think that if implemented properly, they can help to encourage innovation. The problem with the current US patent system is twofold.
One is, as others have said, it is far to easy to get a patent on obvious things. This has been discussed to death so I won't make much more of a point on this matter.
What is a larger problem in my opinion is the length of the patent. 20 years is far too long given the rate of technological progression that we are currently experiencing. Consider how many major inventions were developed between 1986 and 2006. A lot. No, compare that to the number of useful inventions that were created between, say, 1966 and 1986, or between 1946 and 1966. What about between 1890 and 1910. Technological progression is not linear, and the rate at wich technology is developing is exponential (see this article http://en.wikipedia.org/wiki/Technological_Singula rity/ [wikipedia.org] ).
If the term for patents was reduced to, say, 3 years, it would allow companies to develop technologies to profit from their inventions without blocking future innovation too badly.
Other things that might help the software patent system would be to make the patent not applicable until the applicatnt actually produces something that uses that patent. It's not as though someone has to buy millions of dollars worth of equipment to write a program. If they are able to write up the patent then they should be able to produce at least some sort of sample application.

** SIGH ** (0)

Anonymous Coward | more than 8 years ago | (#15399866)

A patent lasts for 20 years, therefore a 3 year monopoly would not be a patent; go and read TRIPS.

Re:The problem is the length of patents (3, Insightful)

Haeleth (414428) | more than 8 years ago | (#15400090)

Consider how many major inventions were developed between 1986 and 2006. A lot. No, compare that to the number of useful inventions that were created between, say, 1966 and 1986, or between 1946 and 1966.

Well, let's look at it in computer terms.

1946-1966: development of the mainframe computer, based on the pioneering work that took place during WW2. Invention of procedural and functional programming.
1966-1986: development of the modern desktop computer with GUI and applications. Creation of the internet. Invention of object-oriented programming.
1986-2006: development of Microsoft Windows and videogames.

Yup, clearly progression has been accelerating. I mean, the invention of the entire concept of computing simply can't compare to the invention of Final Fantasy XVIII.

What about between 1890 and 1910?

What about it? One of the most innovative periods of human history, during which the introduction of the automobile totally changed the entire face of the developed world. Oh, and there was this other invention then called the "airplane". You may have heard of it, I believe it's still used in some parts of the world.

Re:The problem is the length of patents (1)

shish (588640) | more than 8 years ago | (#15400098)

Though many on slashdot may claim it is blasphemy to say this, I do not think that patents are nessessarily a bad thing. In fact, I think that if implemented properly, they can help to encourage innovation.

Will people please stop incorrectly generalising other slashdot posters, then going on to state the exact same thing as what everyone else is saying?

Maybe it's just that I read at +2, and this "many on slashdot" that people keep talking about (who I never see) are +1 or less...

Pretty Good start..... (1, Troll)

ChrisGilliard (913445) | more than 8 years ago | (#15399697)

Now hopefully, they ban all patents. People shouldn't have the right to own an idea because it's better if everyone can use the ideas that people come up with. Come to think of it, why allow people to own anything? Who needs property rights?

interesting (2, Insightful)

Jaqui (905797) | more than 8 years ago | (#15399724)

the letter that is mentioned rips them for saying no to software patents.

so I naturally had to send them:

I just read a news article on Slashdot. http://slashdot.org/ [slashdot.org]

I wish to inform you that I actually agree with your decision, that software patents are not to be issued or respected.

A patent on software is identicle to a Patent on a cook book.
Both are a collection of words used to give directions in accomplishing a specific task.
Since a cook book is not patentable anywhere in the world, software is not patentable, under the existing laws, anywhere in the world.

I salute you for having both the intelligence and courage to set the correct path and walk it, something that other government bodies fail miserably at doing.

Sincerely,

Jaqui

Re:interesting (0)

Anonymous Coward | more than 8 years ago | (#15399896)

"A patent on software is identicle to a Patent on a cook book." I hate analogies. [upenn.edu] And this one is particularly erroneous. I won't waste my time explaining why. Regardless, you should correct the typo before sending your letter/email.

Re:interesting (1)

Halo1 (136547) | more than 8 years ago | (#15400018)

Read the letter again. It actually rips the Commission for keeping on insisting on the EPO practice (which allows software patents). The Commission's answer is pretty vague, and only mildly better than what they spewed in the past. Still, it is potentially a (small) step in the right direction.

Poland, Again! (2, Insightful)

jstaniek (967692) | more than 8 years ago | (#15399803)

Is Mr. Gierek, from Poland, the only brave there??

Re:Poland, Again! (2, Informative)

Anonymous Coward | more than 8 years ago | (#15400238)

Yes, he is. He is the son of the former communist leader (1971-1980) Edward Gierek. His sister is a very good ophthalmologist

http://en.wikipedia.org/wiki/Edward_Gierek [wikipedia.org]

http://en.wikipedia.org/wiki/Adam_Gierek [wikipedia.org]

http://en.wikipedia.org/wiki/Gierek_decade#The_Gie rek_era_.281970.E2.80.931980.29 [wikipedia.org]

Standard document format for European Parliament? (0)

Anonymous Coward | more than 8 years ago | (#15400273)

A little OT, but I notice that when you you follow the link to the European parliament site, it gives you the question posed in Adam Gierek in HTML. The is also a link on that page to view the parliamentary response. Guess what format that's in?

MS word! Maybe they're refusing to issue software patents so that people can legally reverse engineer MS proprietary formats, in order that those of us who don't buy MS Office can read EU legislation? Hasn't anyone told them it would be easier to produce their online documents in open formats?

Software Patents (2, Insightful)

Sqreater (895148) | more than 8 years ago | (#15400284)

The problem with the idea of computer patents in my mind is that computer programs are not really part of the universe of physical laws that determine devices and processes that can be created. Computers define a very small sub-universe in which hardware and software severely constrict that which is possible and actually make everything almost obvious once the problem to be solved is clearly stated.

Selecting from the limited possibilities determined not by the general laws of the universe, but by the severely restricted rules of the particular software and hardware being used does not constitute patentable creativity in my mind.

In the severely restricted environment of the hardware and software of the human being, picking one's nose to remove a booger should not be patentable. Neither should "one-click-buying", or "double-clicking" be patentable in the computer sub-universe.

The real problem with patents is one that I would call "lawyer-shock." The extremely egotistical and conservative legal profession was caught by surprise by the explosion of technology and has struggle ever since to deny that computer technology has created an environment in which patent law is, essentially, obsolete. In a mad attempt to assert that what it has created over the centuries need not be modified and therefore the superiority in a valid, overarching, abstraction of the law, and lawyers, is maintained, lawyers have caused absurdities and distortions in science and technology.

Support for my point: "Few lawyers are going to master technology. Instead, they will lecture and write about computer law, relying on 'normal' law and stating vociferously that that is all one needs to know to become an expert. One of the more hilarious events is to attend a prestigious seminar on 'computer law' and sit through two days of people speaking about nothing." Lawrens R. Schwartz, "What You Aren't Supposed to Know About the Legal Profession", Shapolsky Publishers, Inc. 1991. I doubt that much has changed.

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