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European Commission Reverses its Views on Patents 181

Posted by samzenpus
from the maybe-not dept.
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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European Commission Reverses its Views on Patents

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  • by morganew (194299) * on Thursday May 25, 2006 @12:19AM (#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>
  • by Anonymous Coward on Thursday May 25, 2006 @12:43AM (#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
  • by Tough Love (215404) on Thursday May 25, 2006 @12:53AM (#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.
  • by Arker (91948) on Thursday May 25, 2006 @01:48AM (#15399507) Homepage

    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.

  • by Anonymous Coward on Thursday May 25, 2006 @01:53AM (#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:Thank goodness (Score:4, Informative)

    by afaik_ianal (918433) on Thursday May 25, 2006 @02:09AM (#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.

  • by bmcage (785177) on Thursday May 25, 2006 @04:13AM (#15399887)
    Waffles are from Brussels or Liege, so Brussels Waffles, please.
  • by Anonymous Coward on Thursday May 25, 2006 @04:46AM (#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.
  • by ajs318 (655362) <sd_resp2NO@SPAMearthshod.co.uk> on Thursday May 25, 2006 @05:08AM (#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.
  • 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".

  • by Chowderbags (847952) on Thursday May 25, 2006 @05:25AM (#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.
  • He's a lawyer (Score:2, Informative)

    by Anonymous Coward on Thursday May 25, 2006 @06:01AM (#15400125)
    This blog post from an IP professor in the UK puts things in perspective: http://ipkitten.blogspot.com/2006/05/software-pate nts-will-you-wont-you.html [blogspot.com]
  • waffles!? (Score:2, Informative)

    by bobamu (943639) on Thursday May 25, 2006 @06:24AM (#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.

  • Re:Clarify please? (Score:2, Informative)

    by ultranova (717540) on Thursday May 25, 2006 @06:45AM (#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:Poland, Again! (Score:2, Informative)

    by Anonymous Coward on Thursday May 25, 2006 @06:48AM (#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]
  • by FlorianMueller (801981) on Thursday May 25, 2006 @08:44AM (#15400579) Homepage
    Let me provide some clarification:

    Software patents do exist in Europe. Tens of thousands of them, in fact. They have been, and continue to be, granted by the European Patent Office (EPO) as well as national patent offices (such as the UK Patent Office, for an example).

    However, Microsoft, Oracle, SAP and the other usual suspects are unhappy about the fact that most of those European software patents are barely worth the paper their documents are printed on. All patent litigation in Europe goes to national courts. Even if there is an infringement of the same patent by the same infringer in multiple countries, the patent holder has to sue country by country. The national courts look at the applicable national law. So, what does that applicable law say as of now?

    All countries that are member states of the European Patent Organization (the international organization that runs the EPO) have signed and ratified the European Patent Convention (EPC), a treaty that was worded in the 1970s. Its article 52 says that "computer programs" (and various other things) are not patentable inventions. But it also says that this exclusion only relates to the excluded subject-matter "as such".

    The interpretation of "as such" varies greatly. The EPO believes that a computer program is only a "computer program as such" in the form of source code or object code, on which no one (not even in the US) would want a patent because its scope would be too narrow (for protecting code, copyright does the job anyway). But any concept that can be implemented by way of a computer program, such as a context menu, is considered a technical invention by the EPO.

    It's like saying: Once the program actually runs on a computer, that whole computer along with the program running on it is no longer a "computer program as such" and the exclusion doesn't apply. That's the EPO position. It's also the way many national patent offices justify the grant of software patents. However, national courts with their independent judges often come to a different conclusion and throw those software patents out right at the beginning of an infringement litigation.

    At this juncture, the real threat is not that the EU would introduce an EU community patent and change the legal framework. The clear and present danger is that the European Patent Litigation Agreement (EPLA) [no-lobbyists-as-such.com] might be ratified. Microsoft, SAP and their usual allies (including the EPO itself) are pushing for this initiative now. That's the one to watch out for.

  • The story so far ... (Score:1, Informative)

    by Anonymous Coward on Thursday May 25, 2006 @10:46AM (#15401585)
    ... is told very well in this recent publication by Oxford University Press [oxfordjournals.org].
  • by Alsee (515537) on Thursday May 25, 2006 @02:47PM (#15403836) Homepage
    Though many on slashdot may claim it is blasphemy to say this, I do not think that patents are nessessarily a bad thing.

    You are confused. The vast majority on Slashdot accept patents are a good and usefull thing. You have to dig long and hard to find two or three people around here actually arguing against patents.

    The whole "no patents" thing is a strawman.

    No, the main argument going on here is whether patentability should be EXPANDED to cover mathematical calculations - whether patentability should be EXPANDED to cover sequences of mental steps.

    In the 1980's a US court reversed US patent law and abandoned critical doctrines of patent law and violated all global norms of patent law. Prior to that the US, and all other nations, all said that you could not "invent" math and that you could not get a patent for "inventing" a sequence of logical mental steps. The US and the rest of the world rejected ny and all attempts to patent software. Most of the world still stands by traditional patent law and still rejects any claims to "inventing" software. The nations that have reversed their patent law on this point have often done so under the arm-twisting of US Free Trade Treaties.

    The current issue is whether the EU will adopt this US-style patent law creating logic patents, or whether they will stick with traditioal patent law and the terms of the existing European Patent Convention. The European Patent Convention says:

    Patentable inventions

    (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.


    There is no meaningful "anti-patent" side in this fight. One side is pro-patent and for the patentability of mathematical methods, and the other side is pro-patent and against the patentability of mathematical methods.

    -
  • Re:Clarify please? (Score:3, Informative)

    by DragonWriter (970822) on Thursday May 25, 2006 @07:34PM (#15406096)
    There's considerable evidence that so-called "free trade" (which is highly selectively "free", anyway) benefits wealthy holders of capital and hurts labor, both in the richer and poorer partners (trade within the EU, rather than between the EU and other countries, may not quite fit this model, though, since it has, IIRC, a lot of compensatory features that international "free trade" generally lacks -- its more like real free-and-fair trade.)

    See, for instance, Amy Chua's World on Fire, though that work mostly focusses on the less-developed partners in trade, and on places where the pre-existing class divide also corresponds to an ethnic divide.

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