Software application development
This blog is intended to provoke discussion and exchange between like minded software application developers, engineers, architects, project managers - and keen hobbyists too.
Wednesday 29 October 2008, 8:10 AM
Inconsistency in the air over UK software patent examinations
At the end of last week, the EPO announced that its president, Ms Alison Brimelow, has referred a number of questions regarding the patentability of programs for computers to the EPO’s Enlarged Board of Appeal (EboA).
As you may know, the English Court of Appeal’s decision on the scope of what type of software-related inventions were patentable in the UK upheld an earlier High Court decision overturning the UK Intellectual Property Office's (IPO's) refusal to grant Symbian a patent for its 'novel and inventive computer operating system'.
Although this case has been around for some time now, the reason that it’s still making headlines is due to the inconsistencies in way patent applications are being examined across Europe (especially in the UK) and the uncertainty that arises as a result of this.
In an increasingly competitive programming landscape with so many reusable components and tools, software engineers are faced with a tougher challenge than ever when trying to create and code for "the next big thing", while at the same time avoiding their very own high court litigation suit.
Although all software code is automatically protected by copyright, in the same way as news articles or books - a truly new piece of software needs to not only provide a new user proposition, but also meet the requirements needed to pass as new or 'unique enough' to warrant patentability.
What we’re saying here is that you have to apply to get a patent over and above your copyright, as they are not the same thing. The issue at hand is that software on its own is not normally granted a patent (at least not in Europe, but it often is in the USA).
Legal cases in the past have hinged around software applications whose code may be new and original, but which in practice exhibit the form and function of another application so closely that a patent already in existence is deemed to have been infringed.
Even when programmers argue that they have provided a new route and means to achieving what may be a similar end result and user experience to that produced elsewhere, they have still lost their cases. Although they may argue that a chef who publishes a recipe for an omelette does not then own the patent for omelettes – so that therefore there is more than one way to produce the same end product – they very often fail to convince the courts.
The best advice in this situation, especially if you have the next super killer app up your sleeve, is to get yourself as well informed as possible.
According to the Chartered Institute of Patent Attorneys (CIPA), the situation now is that applications to patent software will be examined by the UK-IPO and the courts in the UK on the same basis as they are at the European Patent Office (EPO).
"The clear and authoritative guidance from the Court of Appeal will end a difficult period of uncertainty and confusion for UK inventors," said Dr John Collins, at the time of the Court of Appeal's announcement, adding, "The decision is particularly beneficial for SMEs, who can now pursue computer-related inventions at the UK-IPO rather than at the more expensive EPO."
The Court of Appeal refused permission to take the case to the House of Lords.
Last Friday's EPO announcement on this subject has reintroduced uncertainty for applications to patent software-related inventions and is likely to add to the delays applicants experience after they have submitted patent applications to the EPO.
PreviousComments on this post
This (and the strange series of decisions of the UK Courts recently) is the biggest news in software economics and ethics since the CII Directive when ZDnet UK helped fight for economic sanity and justice. Now it's relegated to a blog entry?
Anyway, software “on its own” is /never/ granted a patent by the EPO but that doesn't stop it granting software patents very nearly as liberally as the USPTO.
Thanks very much - I appreciate your comment.. it's "just' a blog yes - but I have written on this subject several times.
Adriian
plh.....just to quote you for a second:
"Anyway, software “on its own” is /never/ granted a patent by the EPO but that doesn't stop it granting software patents very nearly as liberally as the USPTO."
In the above statement you seem to be saying that it does and it doesn't! Clarity on this please?
Adrian... can a US patent be applied for within the UK/EU and if so, would it hold any weight on these shores or just serve to limit the movements of would be imitators?
I shall ask the men in the suits and report back Roger - a colleague of mine works directly with these guys.
Adrian
Clarity? Hehe...
“ The claim category of a computer-implemented method is
distinguished from that of a computer program. Even though a
method, in particular a method of operating a computer, may be
put into practice with the help of a computer program, a claim
relating to such a method does not claim a computer program in
the category of a computer program.”
That's a quote from the TBoA's decision T 424/03 which is mentioned in Alison Brimelow's admirably clear referral:
http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf
http://documents.epo.org/projects/babylon/eponet.nsf/0/B89D95BB305AAA8DC12574EC002C7CF6/$File/G308_en.pdf
It's all about the meaning of the word "technical". At the time of the CII Directive, the UKPO issued an explanatory document which contained this statement:
“The Directive aims to clarify the current situation, but retain the
status quo: it is not about making all software patentable.
Inventions involving the use of computers will be patentable
only if they make a ‘technical contribution’. This includes
inventions directed at solving a technical problem – e.g.
software which improves control of a robot arm – but excludes
inventions directed at solving a business problem - e.g.
software to run a new financial system.”
Indeed we were repeatedly told by the UKPO, EPO and others that "pure software" and business methods had not been and could not be patented but the contents of their own databases and the work of patent system academics had already revealed the truth:
“Where are we now? The overall effect of both VICOM and the IBM twins may well be to complete a de facto reversal the software exclusion enshrined in article 52 of the Convention. Tapper certainly thinks that this is so. He comments: 'It is astonishing that the explicit provision of the Convention denying protection to computer programs have been read into virtual non-existence...'.[16] The original stance taken by the Convention seemed to be that software as such was presumed to be unpatentable unless the presumption was rebutted by evidence of something more. Now, it appears that the modern position is this. Software is presumed to be patentable unless that presumption is rebutted by evidence that the application is for software in isolation, a computer program as such. While this may appear to be no more than a change of emphasis, as any practising lawyer will know, it is an enormously important one.”
http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_3/widdison
Speaking as a man in a suit...
plh is pretty accurate on this. The issue is that the European patent law says that computer programs "as such" are not inventions that can be patented. The law in the USA doesn't have this restriction. In general terms, this means that if you want a patent for a piece of software in the UK / Europe you need to be able to show that the invention, i.e. the new concept, that you want to patent is a development in a "technical" field other than just the field of computer software. The legal debate is about what's technical and what's not and how you decide. This is confusing because the man in the street would generally see software engineering as pretty "technical" - but the law doesn't.
Other things as well as computer programs are "non-inventions", for example mathematical methods, business methods, rules for playing a game, schemes for performing a mental act and presentations of information, so you can't use an advance in one of these fields to justify your entitlement to a European patent. The European patents that have been granted to date for software-related inventions have been able to show a contribution in a non-excluded "technical" field.
It's important to know the difference between a granted patent and a pending patent application when considering this debate. Many people cite published European patent applications (often originating from the USA) as evidence of legal protection that is damagingly broad. However, most such cases will have been narrowed significantly before they are granted by the European Patent Office and it is the scope (as defined by the "claims") of the *granted* patent that gives the patentee a legal monopoly. (In the databases, a granted European patent has a "B" rather than an "A" after the publication number.)
The referral to the Enlarged Board of Appeal is trying to make the law clearer and more consistent. Where Adrian says that "a truly new piece of software needs to ... meet the requirements ... to warrant patentability" it's important to understand that anyone has free choice whether or not to apply for a patent, but patent protection can assist small companies in obtaining investment and establishing a market position.
It's also worth knowing that a European patent cannot stop someone doing something they were already doing when the patent application was filed and anything that is already in the public domain can't be patented at all (at least in Europe). Also, a patent can't be used to suppress a truly useful invention, because compulsory licences will be available.
To answer Roger's question, a British company can apply for a US patent, but the US patent only has territorial effect in the USA. Of course, if your marketplace is the Internet, then a monopoly within the USA may well be all the economic clout that you need for a successful business. Conversely, if there is a US patent that covers your commercial activities, you need to be careful about selling products or services into the USA, even if you are based in the UK.
I hope that all makes sense.
This is an excellent explanation Matt - thank you.
I merely scratched the surface by blogging on this and there is a huge amount more to discuss, clearly.
Thank you once again - Adrian
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This comment has been deleted at the users request
Thanks, Adrian.
If this blog provides a catalyst for informed debate on this issue, I'll be happy. Much negative comment on patenting and software patents is based on misunderstanding of the system and confusion with the US law. If I can straighten some of that out, I'll be glad to.
(especially now I've got the hang of posting on this blog without repeating my previous post twice!)
Thank you, that was really clear! So with the situation in Europe, it would almost be worth being so innovative and ahead of the pack that you would encourage people to copy you and hopefully feel flattered about it! Of course if your idea was truly unique you could always have a brick wall/patent set up in the US to give you some standing in the market. Am I thinking along the right lines here?
“Many people cite published European patent applications (often originating from the USA) as evidence of legal protection that is damagingly broad.”
And many people cite broad/abstract/trivial/obvious granted European software patents (e.g. the FFII's patent mined webshop and its many other examples), but whether particular patents are damaging or not does not (usually) matter very much anyway. What really matters is that in order to be justifiable, the overall positive effects of granting patents in this (or any) area should substantially outweigh the negative effects. There is good reason to believe that granting 20 year monopoly exclusion rights over software inventions is not justifiable:
http://researchoninnovation.org/
http://web.archive.org/web/20051230185631/http://www.researchineurope.org/policy/patentdirltr.htm
http://web.archive.org/web/20051219175530/www.researchineurope.org/policy/critique.htm
“This is confusing because the man in the street would generally see software engineering as pretty "technical" - but the law doesn't.”
It is clear from the TBoA decisions, academic studies, the ~50,000 software patents in the EPO database, Alison Brimelow's referral... that the EPO law does now consider what the programmer in the street does to be “technical”. It has gone from this: http://eupat.ffii.org/papers/epo-t850022/index.en.html to T 424/03's “Expanded clipboard formats” and Konami's graphical indicator* etc. over the last two decades or so, reading Art. 52 into “virtual non-existence”.
Interestingly, David at IPKat argues that Brimelow's referral won't get very far with the EBoA because the TBoA decisions aren't really mutually inconsistent: http://ipkitten.blogspot.com/2008/10/more-on-that-referral.html
* http://legal.european-patent-office.org/dg3/pdf/t030928eu1.pdf
“For a long time we used to say that computer programming, or the field of programming, was one of the things that was not included. The Sohei decision, in 1994, was really ground breaking because the Boards of Appeal said that if the invention was to do with how you programmed something, how you implement something on the computer, and if that implementation requires inventiveness, then that is patentable. What they were saying was that programming is a technical art, in the view of the Board of Appeal. That was the first time that was said and that changed our approach a great deal. That is a practical rule for those of you out there. If you want to have software patented then put in the details of the way it is implemented. You may find that the overall concept is not a patentable one because it is a game or a business method, but the implementation may be.” --Dai Rees, EPO.
http://www.ps.uni-sb.de/~tmueller/reestran.pdf
So if someone in europe was to come up with an AI that could detect and scan an unknown device and have it write the appropriate drivers,they would be stuffed?
Does a claim to intellectual property have a place here?
Roger,
In essence, yes, in Europe if patent protection isn't available you will still have copyright protection (assuming you didn't copy the code from anyone else) that would let you stop someone directly copying your code. Others might generate their own software that does the same thing and you would then be relying on your reputation (and brand name) and the specifics of the design of your software to maintain your competitive position in the face of competitors who are likely to be less expensive because they will not have had the cost of developing the whole thing from scratch. If you can get a US patent, you could use it a further deterrent to would-be copyists.
I'm afraid I'm not sure I understand your second question.
plh,
Your sources are accurate, but I'm not sure what your point is.
From a personal perspective, I agree that a 20 year patent term doesn't match the pace of software development. Many companies don't even bother patenting because by the time they have granted patents that they could use to sue the technology has moved on and their invention is no longer relevant. In all fields, British patents are typically not renewed beyond year 11 anyway.
I'd be interested to know what you think the negative effects of patenting in Europe are. My experience is that patents are vital as an insurance policy for start-up businesses seeking investment.
I also agree that it is a bad thing for trivial or obvious developments to be protected by patents. Inventions that shouldn't be patented slip through the net (occasionally) in all fields of technology, but then no system is ever perfect. The good thing about the patent system is that the validity of a patent is always open to challenge. If you identify a granted patent that you know to be invalid, i.e. it should never have been granted, you will have a complete defence if the patentee ever tries to sue you for patent infringement (or you could apply to have the patent revoked).
The EPO Board of Appeal decisions have tended to move away from rejecting patent claims just because they are directed to computer implemented inventions and have looked at the substance of the invention to see whether the contribution made by the invention is in a "technical" field. This is because it doesn't make sense to exclude inventions from patent protection just because they are software-implemented, for example engine management systems. Hence, in the Konami decision you cited, the Board of Appeal said that providing a marker at the edge of the display to indicate the direction of a second player waiting for a pass in a computer soccer game solved the technical problem that "on the one hand, a portion of an image is desired to be displayed on a relatively large scale (e.g. zoom in); on the other hand, the display area of the screen may then be too small to show a complete zone of interest". According to the Board, this was a brand new and non-obvious solution as of November 1996. They were still looking for an invention outside of computer programs "as such", in this case visual displays, to justify patent protection.
That said, it would help for there to be more consistency in the application of the law and that is the reasonal for Alison Brimelow's referral.
mattdixon,
“Your sources are accurate, but I'm not sure what your point is.”
There were 2 main points in my last two posts: one on the economics, one on one of your statements about the law. Can you say which one(s) you find problematic and why? I don't think I was unclear.
“I'd be interested to know what you think the negative effects of patenting in Europe are. My experience is that patents are vital as an insurance policy for start-up businesses seeking investment.”
The same negative effects as exist in any patent system anywhere - did you follow the links I provided? - and as I said before, I think evidence of substantial positive effects is required to justify the expansion in patentable subject matter that the TBoA case law has given us anyway.
According to Bessen via Mann¹, patents are clearly not vital investment-wise in the US software industry. As far as I know - but you may have data on this? - they are not in Europe either, and of course if they weren't available, they certainly wouldn't be vital.
“The good thing about the patent system is that the validity of a patent is always open to challenge. If you identify a granted patent that you know to be invalid, i.e. it should never have been granted, you will have a complete defence if the patentee ever tries to sue you for patent infringement (or you could apply to have the patent revoked).”
How does one “know” a patent is invalid? How much does it cost to mount a “complete defence”? Is insurance available for the patent liability in your software product or service? Is clearance effective, affordable or even feasible?
“... it doesn't make sense to exclude inventions from patent protection just because they are software-implemented, for example engine management systems....”
It doesn't make sense to extend patent protection to software inventions just because software is used in engine management systems and I think it makes perfect sense to exclude certain fields from patent eligibility. Our patent system of law is meant to be the servant of our economy and society, not the other way round.
¹ A Comment on “Do Patents Facilitate Financing in the Software Industry?” Abstract: “Do Patents Facilitate Financing in the Software Industry?” by Ronald J. Mann contributes empirical evidence to our understanding of how software startups use patents. However, a close examination of the actual empirical findings in this paper points to rather different conclusions than those that Mann draws, namely: few software startups benefits from software patents and patents are not widely used by software firms to obtain venture financing. Indeed, among other things, the paper reports that 80% of venture-financed software startups had not acquired any patents within four years of receiving financing. http://researchoninnovation.org
plh, please call me Matt.
So, if I've understood your points correctly:
1. The (economic) benefits of (software) patents need to outweigh the negative effects;
2. The EPO now considers software engineering to be "technical".
My response would be:
1. I agree; I wouldn't support a patent system that I thought was economically harmful.
2. I don't agree with your proposition; if you were correct, there would be no need for the referral.
I couldn't follow your links as they seem to be incomplete (or am I missing something?). I did try.
Looking at "Bessen via Mann", the main conclusion seems to be that only a small proportion of software start-ups obtain patents. That doesn't surprise me, there are many successful start-up software companies who have not developed anything that would warrant patent protection but nevertheless have a successful business proposition. That doesn't mean that those companies who have gone to the effort of developing something new *and* non-obvious shouldn't be able to get a patent to give them a monopoly that will keep imitators at bay until they can recover their development costs or build a successful business on their invention, even if this is only a minority of companies.
If a patent covers something that was already in the public domain when the patent was filed, it's invalid. It may not cost anything to mount a complete defence. For example, if you receive a letter from a patentee accusing you of infringing their patent filed in 2000 and you reply that you are only using open source code that has been available since 1995, that should be the end of the matter - they have no case against you.
I believe that patent liability insurance is available, but I have no detailed information.
A 100% guarantee that you do not infringe any patent is generally not available, but you have to remember that a finding of patent infringement does not have to mean the end of your product. If the patentee doesn't have a competing product on the market, it would not be unusual for them just to accept a licence fee from you, after all it's income from them. A direct competitor with a patent may wish to shut you down to maintain a monopoly position, but in any business you would probably be aware of such a competitor. From practical experience, in Europe at least, patent infringement suits do not generally arrive as a complete surprise. That doesn't mean, though, that you should bury your head in the sand and ignore possible patent infringement risks as they arise. Get some advice - it doesn't have to be expensive (the Chartered Institute of Patent Attorneys www.cipa.org.uk provides free half-hour advice clinics, for example).
The patent system is there to protect "technical" inventions. When the current law was drafted in the 70's cars didn't use software, they were entirely mechanical. Just because they now use software control systems rather than mechanical or electrical control systems doesn't mean that inventions in the automotive industry should be deprived of commercially-effective patent protection. By definition, patents always cover new fields of technology. I don't think anyone is suggesting the removal of the exclusion for computer programs from European patent law - all that is being requested is clarification of what that exclusion means.
In what way do you think that our economy and society is the servant of our patent system of law? I don't see that it is. I still haven't seen your examples of negative effects. Can you repost the relevant links?
Hi Matt... I've just noticed that in some paper books, there is often a message that states " all work within is the intelectual property of the author".
Hi Roger,
That is the author asserting their copyright to show that they are the originators of the content of the book and the first owner of copyright. You could do the same thing with your own software.
Gentlemen - thank you for the debate, this is a forum in its own right.
Adrian
Thank you Matt, please call me Paul. Thank you too, Adrian - and is there any sort of mark-up for making clickable links allowed here?
“I couldn't follow your links as they seem to be incomplete (or am I missing something?).”
There's nothing wrong with them as far as I can tell. They're not directly clickable but cutting and pasting them in the browser works - for me at least.
“1. The (economic) benefits of (software) patents need to outweigh the negative effects;
1. I agree; I wouldn't support a patent system that I thought was economically harmful.”
I suspect we still differ even here. Because the patent system necessarily¹ entails negative effects, I cannot support it (in some field) unless I have good reason to believe its positive effects render it substantially beneficial in sum. In other words I take a Machlupian² position: I don't think the patent system should be abolished but I do think recent developments have been unjustified folly and should be reversed.
“2. The EPO now considers software engineering to be "technical".
2. I don't agree with your proposition; if you were correct, there would be no need for the referral.”
Okay, you don't agree but I don't see the referral connection. Unless any forthcoming EBoA resolution of the allegedly mutually inconsistent TBoA decisions which are cited as the reason for the referral is an extraordinarily radical one, the EPO will continue to grant patents for inventions which clearly lie in the domain of the software engineer.³ Exactly which allegedly competing approach it uses to decide precisely where it thinks the “technicity” lies that justifies the “not a patent for a computer program invention as such” determination will be of no practical relevance to any software engineer.
“Looking at "Bessen via Mann", the main conclusion seems to be that only a small proportion of software start-ups obtain patents.”
I think the first conclusion to be drawn (in view of your earlier assertion) is that software patents are probably not important, at least in the US, in facilitating investment. Second, software patents are beneficial (not to be confused with necessary) to probably only a few start-ups. Lastly, it would be wrong to assume that the non-patentees in the study could be said to approximately coincide with a subsample of “software companies who have not developed anything that would warrant patent protection”.
“If a patent covers something that was already in the public domain when the patent was filed, it's invalid. It may not cost anything to mount a complete defence. For example, if you receive a letter from a patentee accusing you of infringing their patent filed in 2000 and you reply that you are only using open source code that has been available since 1995, that should be the end of the matter - they have no case against you.”
How likely is that though? How does one know it is the exact same invention as one thinks is revealed by something in the public domain? More to the point, what are ones chances of convincing one's accuser that it is the same? What of the similar cases where one disputes that one's software really does infringe the (possibly valid) patent? What of the myriad other complexities, injustices and costs to be faced in a world full of software patents?⁴
“The patent system is there to protect "technical" inventions.”
If it is working well, that is what it will usually do, I agree. But more accurately from an economic point of view it is there to “promote progress...”, and it attempts to achieve that end by granting patent holders the right to deny others the use of claimed “technical” inventions. And it is, unfortunately, quite capable of “impeding progress...” and consequently of gratuitously denying others the use of (their own) inventions, of facilitating a rather different sort of “protection” etc. Peter Prescott QC has explained better than I can why there are exclusions in the EPC at all and why the patent system should not be regarded simply as there to “protect” “technical” inventions.⁵ I'll post one relevant bit of CFPH LLC here since it is at the bottom and easily missed:
“# Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them. It is said that not a few of these pertain to business methods as well. From the point of view of the applicants in our case, if there is any chance of getting such a patent it may be said to be a rational business choice to try it. If not, their competitors might. I have pointed out that patents that are wrongly granted can be very expensive to challenge, and perhaps beyond the means or inclination of small and medium enterprises. An accumulation of patents of that sort (sometimes known as a "patent thicket") may be a serious barrier to entry.
# The only safeguard against that wrong – and it is a wrong – is the vigilance of the Patent Office...”
“In what way do you think that our economy and society is the servant of our patent system of law?”
I was alluding to tendencies to legally oriented technocratic insularity in the patent system and to so-called “regulatory capture”. But I don't really want to get into an unavoidably opinion dominated discussion of whether they exist or not.
⁽¹ ²⁾ I'll just leave this as http://researchoninnovation.org for now.
³ Dai Rees again: “We do not have a definition of ‘further technical effect’; we have examples and we can make some fairly good generalisations. One of them is if it acts on physical data, e.g. an image, or the control data for an X-ray machine. If it has an effect on the way the computer, as a whole, operates, the operating system. A graphical user interface can be a good example, maybe reducing something to a single click. Or if it is saving memory, increasing speed, and so on. The third one, which is what I tried to explain from Sohei, is if what is claimed is an implementation which requires technical programming skill, if you like, programming inventiveness.”
⁴ http://jmri.sourceforge.net/k/updates.html (since you mentioned open source and ease of dispute resolution). Such occurences are not offered as evidence of negative effects of course but merely as illustrations suggesting why I might take a very dim view of software patenting in the absence of evidence of a strongly +ive benefit and how much dimmer a view I do actually take given that what evidence I have seen suggests a -ive [semi-]definite benefit.
⁵ http://www.bailii.org/ew/cases/EWHC/Patents/2005/1589.html
This comment has been deleted at the users request
Here's how to live link guys:
<a href="http://www.zdnet.co.uk/">WORD TO BE MADE LIVE</a>
Hi Paul,
I opened your links (I had opened them before, but I thought you were directing me to a specific paper rather than the list). I haven't read them in detail, but from what I have looked at they all seem to relate to the US economy and US patents, as does your open source reference. That is a completely different legal framework to the European patent system. If we were discussing this issue in relation to US patents, my views would be different, although I would be speaking as a layman rather than a legal practitioner.
In the USA, they have, for example, the following:
1. Punitive damages, which means that you can make more money from a patent infringement action than it has actually cost your business, hence patent trolls in the USA. In the UK, damages are only intended to compensate you for your actual loss, which means that a patent infringement action is usually expensive for both sides.
2. Fewer statutory restrictions on what can be patented, although there has been a recent decision in this area (http://blogs.zdnet.com/open-source/?p=3052).
3. A legal presumption that once the US Patent Office has granted a patent it is valid.
4. A post-grant "opposition" system that is rarely used, because of the potential damage that could be done to a defence in a subsequent infringement case.
These, amongst other things, are reasons why extrapolation of US problems to Europe is not valid. In all this discussion, I am talking about *European* patent law. US patent law is a very different story.
On your point "How does one know it is the exact same invention as one thinks is revealed by something in the public domain?" It doesn't have to be exactly the same invention, the wording of the claims of the patent just has to cover something that was already in the public domain. Patent attorneys (and experienced laymen) show this all the time. On Peter Prescott's point, I agree that wrongly granted patents are a problem. Hence the need for clarification of the law. Not sure I know what "legally oriented technocratic insularity" and "regulatory capture" are.
I want to understand your objection to patents that lie in the domain of a software engineer. Which, if any, of the following do you see as wrong in principle (assuming they are all new and arguably non-obvious)?
a. A European patent claiming a method of searching a database?
b. A European patent claiming database search software?
c. A European patent claiming a *method* of controlling an engine to achieve higher fuel efficiency and lower emissions?
d. A European patent claiming an engine management *system* programmed to control an engine to achieve higher fuel efficiency and lower emissions?
e. A European patent claiming *software* for upload to an engine management system for controlling an engine to achieve higher fuel efficiency and lower emissions?
I'll be interested to know your view...
Okay Matt,
Just a short (and last) post here - there is nothing US economy or legal regime specific in the major points I've made here and cetainly the 13 European economists who signed the protest letter and critique I linked to were not concerned primarily (or at all) with US legislation. I think I've made clear that the simplistic, “david versus goliath”, patent system salesmanship mythology often touted is utterly bogus and that the economists' view is that the patent system rationale is suspect, and more to the point, maximally suspect where subject matter such as software is concerned.
(and of course if you have refutations of anything I've said, I don't wish the fact that I'm too lazy to continue this debate to implicitly prejudice any further discussion)
Hey all,
If you want to live link words then just mail me via ZDNet.co.uk and I'll send you my Gmail address (although if you think along obvious lines you'll guess it straight away) and I'll mail you the instructions.
I spent ages trying to post the HTML correctly this morning, but I think there's some parsing going on between me sticking it into my reply and then posting it.
Regards - Adrian
Paul,
Thanks for your comments. I've enjoyed the debate and I think I've probably learned some useful stuff.
Thanks - Matt
I'm not an expert but, to my mind, programming is the application of different mathematical algorithms .
If I went to the IPO and said I want to patent maths they'd tell me to b*gger off.
Ergo the IPO should be telling software vendors that are seeking to monopolise certain markets with software patents to b*gger off too.
The only thing that might get in the way of this logic is the use of threats or bribes.
Thanks for your note dogStar,
Of course you are right - you can't patent maths and I don't think we're suggesting that.
I think it's more about what you end up with as a result of your algorithmic creations.
I wrote a story on this a couple of years ago focused on an app that had been designed for online flight bookings. I think it was Easyjet who sued them and said it looked and operated just like theirs did. I think they lost because the competitor had built their code from scratch and it ended up looking a lot like Easyjet.
Same thing happens with music I suppose. I reckon some of Keane's first album sounds like "... and then there were three" by Genesis and I'm sure Keane would say they list those crusty old rockers as an "influence"...
It's where you draw the line between influence and copying I suppose.
> It's where you draw the line between influence and copying I > suppose.
... or whether you have lots of money to intimidate and/or bribe.
The argument that you should be able to patent the result of algorithmic creations is spurious. As has been pointed out in the article and comments protecting algorithmic creations is protected by copyright law.
Society doesn't benefit from software patents. They only exist as a means of commercial protectionism and thus limit innovation.
Hi dogstar.....your last paragraph:
"Society doesn't benefit from software patents. They only exist as a means of commercial protectionism and thus limit innovation".
Surely this can work the other way around, i.e. the little guy who may be a big innovator risks having his ideas pinched off him by larger companies, the result being that the little guy may lose heart and not feel like innovating any more.
Thanks Roger - very level headed of you.
Perhaps this is a good time for us to all do some homework and visit the Patent Office's web site...?
http://www.ipo.gov.uk/
AdrianB
Hi Dogstar,
You are absolutely right that you can't get a patent, in Europe at least, for a mathematical algorithm itself. It is the application of the mathematical algortihm that you might be able to patent. For example a method of generating very large prime number would not be patentable, but a system for encrypted communication using that method might well be (assuming the system is new).
On important point is the distinction between copyright protection and patent protection. If you have used a particular algorithm as part of a piece of software you have written, copyright will only provide you with protection against someone who copies your code, i.e someone who has seen your code (or how it functions) and replicates it. If someone launches a competing product that has been written independently, there is nothing you can do to stop them (unless you have a patent) even if they use the same basic algorithm. Copyright doesn't protect the concepts that you use, just the exact way that you have implemented them. So when you say "protecting algorithmic creations is protected by copyright law", that's not quite right.
Roger's comment is a good one and captures the essence of what patents are there for: to give the inventor some protection for his effort against those who would just nick his ideas. That works for the little guy as well as the big corporate.
If you have any first hand experience of software patents getting in the way of your business, I'd be interested to hear about them.
Very informative discussion
