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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 ScrewMaster (602015) on Thursday May 25, 2006 @12:22AM (#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.
  • Pressure? (Score:5, Insightful)

    by WalksOnDirt (704461) on Thursday May 25, 2006 @01:20AM (#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.
  • by Anonymous Coward on Thursday May 25, 2006 @01:28AM (#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.
  • by John Nowak (872479) on Thursday May 25, 2006 @02:14AM (#15399566)
    Any idea, typed up, can be reproduced in binary. I don't see what that has to do with anything.
  • Contrarian view (Score:5, Insightful)

    by xkr (786629) on Thursday May 25, 2006 @02:23AM (#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.

  • by tankbob (633230) on Thursday May 25, 2006 @02:42AM (#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.

  • by Tough Love (215404) on Thursday May 25, 2006 @02:48AM (#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.
  • interesting (Score:2, Insightful)

    by Jaqui (905797) on Thursday May 25, 2006 @03:21AM (#15399724) Homepage Journal
    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:Pressure? (Score:5, Insightful)

    by Anonymous Coward on Thursday May 25, 2006 @03:41AM (#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.
  • Poland, Again! (Score:2, Insightful)

    by jstaniek (967692) on Thursday May 25, 2006 @03:44AM (#15399803)
    Is Mr. Gierek, from Poland, the only brave there??
  • Re:Contrarian view (Score:3, Insightful)

    by NutscrapeSucks (446616) on Thursday May 25, 2006 @03:53AM (#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 (Score:2, Insightful)

    by kanweg (771128) on Thursday May 25, 2006 @04:01AM (#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.
  • by Poingggg (103097) on Thursday May 25, 2006 @05:29AM (#15400058) Homepage
    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....
  • by Haeleth (414428) on Thursday May 25, 2006 @05:43AM (#15400090) Journal
    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.
  • by c0l0 (826165) on Thursday May 25, 2006 @07:00AM (#15400262) Homepage
    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.
  • Software Patents (Score:2, Insightful)

    by Sqreater (895148) on Thursday May 25, 2006 @07:12AM (#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.

  • Re:Clarify please? (Score:5, Insightful)

    by zoney_ie (740061) on Thursday May 25, 2006 @07:13AM (#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? (Score:5, Insightful)

    by BobTheLawyer (692026) on Thursday May 25, 2006 @07:28AM (#15400334)
    Free trade harms the local economy and increases unemployment? Which economist have you been reading?
  • by Halo1 (136547) <jonas@maebe.elis@ugent@be> on Thursday May 25, 2006 @08:25AM (#15400497) Homepage
    There is no such thing as a "computer-implemented invention", except in the imagination of the EPO. The only thing you can implement in a computer is software ("as such", if you like). And software is not an invention according to the European Patent Convention.

    Therefore, the interpretation of the Technical Board of Appeals, namely that "software executed by a computer" is a "computer-implemented invention", is as logical as it is fallacious. It's logical, since the only thing you can implement in a computer is software. It's fallacious, because software cannot be an invention (computer-implemented or not).

    If you are thinking of ABS braking systems (novel use of measuring friction energy to prevent slipping) and things like that: those are better described using the term "computer-aided invention" or similar, as proposed by several MEPs [ffii.org] back in the day of the swpat directive.

    You cannot implement brakes or washing machines inside a computer, but when you invent such things, the operation of those things most likely will be in someway aided by the use of a computer (running software, obviously).

  • Patent law actually requires "fair licensing."

    When you build something out of belts and pulleys it takes you, at a minimum, months to create a relatively simple device with a few dozen components that is potentially violating a handful of patents, and man-years to set up production and ship significant quantity of product.

    When you build something out of software, in a day you can create a "device" that is a hundred times more complicated than that, containing thousands of components and thousands of potential patent violations. In a few hours you've created man-years of work for patent lawyers if you want to make any kind of reasonable attempt at even discovering whether you need to pay any fees... no matter how reasonable.

    Any kind of mandatory licensing regime would simply provide a windfall for lawyers, no protection for inventors, and turn the release of a $5.00 piece of shareware into a crippling nightmare.
  • by squiggleslash (241428) on Thursday May 25, 2006 @08:59AM (#15400681) Homepage Journal
    Seeing as most of the people who have responded to you have ignored what you wrote, I'll answer.

    Making a living selling software (more specifically the same software program to many thousands of users or more) isn't something you necessarily can do directly without intellectual property rights. However, this isn't how most programmers make their money. A quick glance at the job listings will tell you that most tools and applications are bespoke, designed by consultancies or by the users themselves, for themselves. Most companies listed aren't software companies. Java and .NET skills are in massive demand, yet what percentage of the day-to-day tools your mother runs on her desktop are written using either?

    The issue is you're asking the wrong question: making a living selling software is only important if you believe you want a career in sales. But salespeople can find work in any environment. The more important issue is how can you make money being a programmer? And realistically, if copyright and patents were abolished overnight, 90% of programmers would still retain their jobs. Those working for Microsoft and Adobe might have problems. Those working for Sun, IBM, and Novell would probably continue business as usual. The vast majority, who work on software you've never heard of, employed by companies like Proctor and Gamble, BellSouth, Viacom, Accenture, etc, will continue to work on what they were working on the day before. Why stop?

    Even those laid off will find employment. Demand will still exist for the types of generic application that were usually sold commercially. But the nature of their employ will change. Hardware manufacturers will try to get software out that makes their software sing, that makes their computers desirable. We might even see a return to the innovation of the mid-eighties as hardware manufacturers see being new and different as desirable, to distinguish their platform from the others.

    I'm not going to say I want copyright abolished tomorrow, but I strongly believe programmers have the least to fear from such an eventuality, and a general loosening of copyright and patent laws with regards to software could have very positive effects.

  • by Toba82 (871257) on Thursday May 25, 2006 @11:17AM (#15401861) Homepage
    You seem to be a bit misguided, sir.
    Why would you invent if you cannot protect your invention from big corporations?
    You can't now. The big corporations can counter-attack with their patent aresenal and flatten you.
  • Re:Clarify please? (Score:2, Insightful)

    by Sloppy (14984) on Thursday May 25, 2006 @12:46PM (#15402743) Homepage Journal
    I'm starting to think that joining the European Union was a bad mistake
    I'm shocked that any single person thought it wouldn't be a mistake. How can moving power further away from you so that it becomes less accountable, ever be a good idea? States should get smaller, not bigger.

    In US (which is already way too big with too many decisions made in Washington instead of our state capitols and city councils) we laugh the the EU, because you're repeating our mistake and trying to be as dumb as us. Pretty soon, you'll all be eating Big Macs and drinking Coors Light. Ok, maybe not those particular brands, but something just as bland. Europe's diversity is something I have admired, and people are throwing it away.

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

    by LupusCanis (939826) on Friday May 26, 2006 @02:58AM (#15407974)
    Why did this get an insightful? This is just flamebait if ever I saw it.

    America became as it is because of it's ultra-individualist way of life - Europe, though hardly as socialist as Americans seem to think it is, does not have that view on life - it's not going to become like America is now.

    I also think you overestimate how much power has been moved to Brussels - yes, there are EU regulations, an EU currency and so forth, but the EU is far from being a United States of Europe - each country is independent, has its own distinct identity, makes its own laws, runs its own army and police force, has its own courts etc. etc. etc.

    Europe is a collective of nations, perhaps as America was at some point in some ways, but really ... in other ways, not really. Europe's diversity is exactly why we will not become like America - a Liverpudlian is completely different from a Mancurian, and those cities are almost touching! How different do you think, say, Dublin would be to, say, Sicily? There are so many cultural variations, deeply entrenched rivalries and alliances that it becoming a monoculture like America is quite impossible.

    When the USA became one country, the individual states didn't really have a massive amount of identity, they were all recently formed, mostly came from the same country, didn't have extremely bloody wars among themselves so forth. Europe is not the same.

    And as for why it is a good idea, look at the EEC, it makes trade within Europe a LOT cheaper for everyone involved. Now look up, say, UK's CIA world factbook, and work out how much of its trade is to other EU nations. Hint, it's most of it.

    THAT is the advantage of the EU.

    Oh, and we laugh at America too, but we also doubt that when most Americans laugh at Europe, they're really thinking "hey, this United States thing sucks, look, Europe's doing it too! lol".

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