UK: Software And Business Methods Not Patentable

horza writes: "The conclusion of the UK government consultation on whether software and business methods should be patentable, as they are in the US, are that software and business methods are not patentable. Britain will be pushing for the EU directive to match UK law."

Software patents aren't inherently evil...

I would argue that all software patents aren't evil, and should be allowed, as should business method patents.

However, the problem lies in how the USPO (and similar institutions in other countries) seem to interpret an application for a patent on software/business method, and as to the defintion of what is patentable therein.

I think the basic starting point on this issue is to agree that the subject of a patent is the implimentation, not the idea . Allowing people to patent (and therefore gain exclusive use) of ideas is generally grokked to be a Bad Thing. However, it seems to be a Good Thing to allow for time-limited exclusive use of certain implimentations of those ideas.

The current problem with Business Method and Software patents in the US is that they've got it backwards - the USPO is now essentially granting patents on ideas. Go read bunch of the applications - its the idea they want exclusive use for, not the implimentation. The patent apps are so general that it can't even be hypothesized that the application is for an implimentation.

Therefore, I think we should allow patents on Software and Business Methods, but require them to fit these criteria:

1. For Software, only the code that impliments the idea is protectible.
2. Packet design is protectible (as it is a concrete implimentation) provided it is part of the whole application. Likewise with APIs.
3. Specifications are NOT patentable, as they are ideas, and not implimentations.
4. Mathematical Algorithms are patentable. However, a patent on an algorithm must be obtained seperately. Thus, you cannot invent some neat new way to do Bubble Sort in C, and then claim ownership of all Bubble Sort algorithms. You can invent SuperDuperSort ( a/2 + b/2 +.. = z) and apply for a patent on the algorithm alone.
5. Business Methods can only be allowed if they are specified in great detail (exactly how each step is to be completed, with what methods, etc.). Methods must be completely different than anything in use anywhere else in order to be granted. In my mind, the model should be similar to cooking recipes - you have a specified series of steps, each of which details what to do.
6. The protection time should be much shorter than 20 years for Software/Business/Algorithms. The original time was long because there was a considerable setup delay, which doesn't apply in these cases. I would vote for a 3-5 year period.

I think of software patents as essentially enhanced copyright - the author has come up with a neat way to code a particular problem, and no-one else can use that code segment (even translated into another programming language) until the patent expires. But that should be the limit on software patents.

-Erik

Re:A philosophical argument for software patents:

Software is not math. Software is a machine.

I disagree totally. Software is a way of expressing ideas. Software is *not* a machine. The only discernable difference between software and natural language is that it is usually terser in syntax and effort has been made to make it unambigious (though not always true, eg C and /* which can mean start comment or divide by a number pointed to by a pointer). If it is deterministic (which usually follows from being unambiguous, ignoring hardware issues) and has a condition and branch instruction then it is as powerful as any language in existance.

By itself, Math is nothing. It's just a framework that people use for applying thought.

By itself, software is nothing. It's just a framework for people applying thought. Without a compiler (which depends on the compiler authors interpretation of how it should be converted to machine code) and a processor (with its own architecture and way of doing things) and supporting hardware infrastructure, software is just writing on a page.

In no case, however, is the software simply a set of abstract concepts intended to facilitate human navel-contemplation

With the Unlambda Functional Programming Language [eleves.ens.fr] I rest my case m'lud.

Just because the control mechanism of a machine has moved from a purely physical implementation to an electronic one does not diminish the truth of its mechanical nature

Surely a non-mechanical mechanical nature is a contradiction in terms?

We allow the patenting of physical machines and industrial processes [...] Why should logical ones not receive equal protection?

We don't. We patent a technological innovation which is implemented in a physical machine or an industrial process. You can still patent a technological innovation in the UK if it is implemented in software. It's not the software you are patenting though but the innovation itself.

Can I conclude with the point that anyone who has studied computer science will have written software by hand on paper (in an exam) to express ideas to another human being (the examiner) who then understood that expression of ideas without a machine intermediary.

Phillip.

Re:Open source remarks

"16. The Government does not, however, accept the view - asserted by some respondents - that Open Source software is threatened by the existing extent of patentability. This seems to fly in the face of the facts, notably that during the last decade Open Source software has flourished."

Excuse me, but I find this blatantly stupid. I see NO positive causal link between the two - in the absence of proving no negative correlation, how can you POSSIBLY that OSS would have flourished LESS if patents simply didn't exist?

This is like saying that seatbelts cause more fatal accidents. After all, there has been an increase in the number of seatbelts in the US. Similarly, the number of fatalities has increased as well.

Who ever wrote this little piece of FUD needs a sharp thwack with a clue stick.

Because...

Why is this moderated troll? This isn't someone trolling, this is a VALID point.

Because moderators are not employees of Slashdot. Moderators are selected pseudo-randomly, to moderate a few items, from registered users with some history and some positive "karma".

They're SUPPOSED to moderate on the basis of the quality of the post but NOT on the basis of whether it agrees with their opinions. But some yeild to the temtation to moderate down postings with which they have an ideological disagreement.

There's some feedback: Any registered user is encouraged to "meta-moderate". Click the link at the top of your page and you will be presented with ten moderations, which you can grade as agree/disagree/neutral. Do it daily for a couple weeks and you might get to meta-moderate the guy whose moderation you didn't like.

Karma is essentailly (mods up) - (mods down + metamods disagree). If enough people ding a turkey moderator his karma will drop until he doesn't get to moderate any more.

It's not perfect. For starters it doesn't undo the bogus moderation. But at least it's something. (And it can be very satisfying. B-) )

Re:Not sure if this is a good idea.

The reward for coming up with a successful business practice is ... drum roll... success. If you are RELYING on the fact that you have an artificial monopoly in your particular business niche, it simply means you can't compete.

Re:Others will take yor place. U R ! that importan

Anyone who thinks they need the support of armed police and federal agents, backing IP law, to make their living... then maybe you OUGHT to go broke. You exist at the expense of everyone else's freedom. You existance is too expensive.

Let's substitute some variables:

Anyone who thinks they need the support of armed police and federal agents, backing [real estate, property, labor, finance] law, to make their living... then maybe you OUGHT to go broke. You exist at the expense of everyone else's freedom. You existance is too expensive.

The only difference is that IP isn't physical. So what? It's still property. It still has value. Ultimately, all costs are labor costs if you think about it. Actually, money is becoming less and less physical all the time. Do you think we should throw out the SEC laws in the US just because they are enforced by Federal agents attempting to control bits of information?

Given that, I fail to see how IP law threatens freedom any more than any other law. Certainly, IP law taken to extreme is a threat to liberty, but so is any law.

At any rate, the Brittish experiment sounds exciting. It will give us an opportunity to see how things work under such a system. I'm less sanguine about them trying to push this through the EU, and the EU in general. Things like this--different nations doing things differently, are why One World government is wrong. One World govt. and economy is wrong for the same reason monoculture crops are wrong. One disease could kill the whole lot. Already the World economy causes problems, such as the US market having an impact overseas.

A philosophical argument against hardware patents

Hardware patents are abhorrent to me insofar as all patentable hardware is pure physics (physical processess - object like paintings and sculptures are copyrightable expressions, but not patentable). To patent hareware is to grant a government-enforced monopoly on a set of physical operations to a person or group. Yes, that means if you perform or cause to be performed a set of physical operations that someone else has patented, and are discovered, men with guns will come and stop you. Only the patent holders (and licensees, if applicable) are allowed to do this application of physics; because it's a patent, it doesn't matter if you derived these physical operations independently or not. It's hard for me to articulate the degree to which I feel this represents an unconsionable hindrance in the advancement of human understanding. What does society gain by having the government say who may perform what physical operations by beaurocratic fiat?

Good, but what happens now?

I'm happy to hear this news, but what's going to happen to the UK now?

Corporations are still going to get their patents, whatever the government has to say about it. If the UK won't grant it, then they'll just take their business elsewhere. The UK has been an attractive location for high-tech development because of the pound's strength against the euro, and because of Britain's efficient network of rails supporting the industries that support high tech. But a shaky legal situation could undermine investor confidence and shatter these hard-won benefits.

I can't emphasize it enough: you can't fight big business with government. Governments are just another type of business and know how to look after their own. Businesses have a stronger voice than citizens because of corporate finances, and mark my words, this isn't the last we'll hear about this issue. The UK doesn't have a constitution, so all it will take is another act of parliament tomorrow to turn the tables on intellectual property yet again.

Still, it's nice to see the UK serving as a role model for others, a role normally enjoyed by France. With luck, business-model and software patents everywhere will be abolished.

Correction: report SUPPORTS software patents

From the report:

19. The Government's conclusion is thus to reaffirm the principle that patents are for technological innovations. Software should not be patentable where there is no technological innovation, and technological innovations should not cease to be patentable merely because the innovation lies in software.

Patents and You

The idea that software is not patentable at all is really a step backward. As much as we may bitch and moan about how stupid the One-Click patent may be, is it so much different than an invention that allows one-button starting of a car? Whether or not either patent would be valid is another story, but the fact remains that few would have qualms issuing the second patent. The difference is merely the distance between tangible space and electronic space.

Now should patents be applied to software products? That is a different question. The One-Click patent should clearly explain the process involved in creating a working system (whether through actual source code or through a series of diagrams). In this way, the idea of a one-click system is still open for innovation by other developers who wish to seek new ways of improving on the idea. To prematurely close off a whole area of software by issuing a broad patent would be a bad thing.

Dancin Santa

Re:And why the bloody hell not?

I'm afraid I must respectfully disagree with your opinion Mr. qpt.

Software and business methods are nothing more than ideas and thoughts transcribed into digital or written form. There is nothing to patent. Do your propose that patents be issued on the paper or digital media that the ideas are stored upon? You see, that's precisely the problem. You're talking about an intangible object that spurred as a result of someone's synapses firing in a certain sequence to produce a thought. By your argument, one could propose that anyone else whose synapses fired in that same order, and thus, independantly achieved the same idea, is breaking the law. This is absolutely ludicrous.

Using your proposed method, I think I'm going to patent the process of transcribing a sequence of 1's and 0's to a digital medium for the purposes of data archival and processing. I will then proceed to sue every software and hardware manufacturer in the world for violation of my patent.

My point being, where is the line to be drawn? How can an intangible resource such as a thought or business model be "owned" by a single entity or group. This would exclude any other individual or business from "thinking" the same way. The mere idea is absurd. I think the Linux business model and the GPL is the future of software and intellectual property as we know it. Everything will eventually be make made freely available for non-commercial use, and companies will become profitable by providing support and services, not the software itself.

Re:How fickle

The first official peice of legislation passed by the Nazi controlled Reichstag in 1933 was banning of personal firearms.

As they always say, "At least with Hitler the trains ran on time."

I can list a million and one things the Nazis did: They glorified white folk, they promoted classical music, they revalued the currency, they recalled some ambassadors, they beefed up the military, they changed the flag.

Quick: Which one of these is the guaranteed first step down an inexorable path to tyranny?

Answer: Whichever one you're arguing against at the moment. Because that's how the "The Nazis Did It" school of polemics works.

Why Not, Exactly?

Why should a company be motivated to research new business practises if it cannot profit from its own work? In todays fast moving, morphing world, business plans are what businesses live and die by - they are the modern rocket science, and many billions are spent daily on their research and practise.

Okay, I am not an economist or an MBA (I'm a computer scientist and aspiring cognitive scientist), but I fail to see how development of new business methods qualifies as "research". It is innovation in a sense, to be sure, but on what basis should new businesses be allowed to be granted a 15-year (or whatever--is it that long for business method patents normally?) exclusive right to do business a certain way? Isn't allowing business method patents akin to granting the right to limited (in time) ownership of an idea?

The whole point of patents was that it wasn't the idea per se that was being owned (hence, the reason for publication of the invention), but, rather, the physical realization of it, and the individual (and by logical extension corporation, which is a legal person in the U.S. at least) should thus have the right to grant (or deny) license for others to physically realize the same idea. It's supposed to encourage innovation and invention by enticing others to find better ways to physically realize the same idea, or else to come up with a better idea and, hence, approach to the relevant problem.

It's never been clear to me that business method patents (and software patents) exactly capture this idea. (certainly not as implemented in the U.S. Patent office, but that's another rant for another time....).

Re:Good, but what happens now?

If the UK won't grant it, then they'll just take their business elsewhere.

You don't understand the concept. If these practices aren't patentable in the UK, then patents made elseware aren't enforcable to UK buisnesses either. So UK buisnesses (and any others that decide to re-locate to the UK) are free to use "one click shopping" or "floatable toolbars" in whatever they want, with no fear of repercussions. I would think this will be a big boon to buisness in the UK.

Re:Correction: report SUPPORTS software patents

No actually it does support the concept of no software patents. Think of it in legal speak and what is currently happening.

A patent can be granted in the US if the process that is happening in software is an old process, but not in software. And a patent can be granted for "frivoulous" innovation because the line for innovation has not been clearly drawn.

What this phrase is saying is that, software by default are not patentable. However, if you have something that is REALLY innovative then yes software can be patented. What this means is that before you can patent or receive a patent, you better have a DAMM good idea.

To a degree the American system is worded like this, but the problem has been that the court system moved the line towards frivoulous patents. This is good because the UK patent system has drawn a line to the correct side.

Re:And why the bloody hell not?

In today's cut-throat economy, businesses need every competitive advantage they can muster.

If their business method is so bad-assed that they want a patent, they shouldn't NEED a patent to help them out: They will dominate the market because customers like what they do. Business methods don't usually involve a lot of money to think up, just to implement. I could think up Amazon's business method (let people easily buy books online) while sitting on my couch, but it takes a hellava lot of money and effort to actually do it.

Re:And why the bloody hell not?

Don't confuse patents with copyright. IANAL, but as I understand it, the law in this country (UK) says that if I write a program, (or indeed create any work- poem, essay, etc), then I automatically own the copyright.

What I can't do is to patent that (intangible) idea. Thus another company could come along and create a program that did the same as mine, AS LONG AS THEY DON'T USE MY CODE DIRECTLY, i.e. it is a 'clean room' implementation, and it would be perfectly legal.

IMO this is a good thing since it means that a) I have the advantage since I created the program first, and b) I and the other company must compete on the merits of our code.

As another poster pointed out, this is precisely the opposite of what companies like Microsoft do.

I'm not so sure

Now should patents be applied to software products? That is a different question. The One-Click patent should clearly explain the process involved in creating a working system (whether through actual source code or through a series of diagrams). In this way, the idea of a one-click system is still open for innovation by other developers who wish to seek new ways of improving on the idea. To prematurely close off a whole area of software by issuing a broad patent would be a bad thing.

In once sense, what you're saying is right, since it strikes to the heart of what patents are for: the hard part is the research and development effort required to turn an idea into a working product, and it is this effort that is protected by the patent.

But on the other hand, the problem with software patents is precisely the difficulty in drawing this distinction. It's not at all clear if an implementation is not just a detailed expression of an idea. Basically, if a patent contains a detailed explanation of something (say, my new-fangled B-crap-tree database file structure) through the use of diagrams, UML, or whatever, and no source code, than I've merely expressed the idea in detail and have not given the details of how I implemented it. But if it goes all the way to the level of source code, it's really too particular to be useful as a patent, because anyone can change the structure of their program and implement basically the same thing without stressing their R&D effort too much.

I guess all this does is suggest that answering the question of what constitutes patentable software is an in principle hard question. The same is true of anything, but I think it's a particularly hard balance to strike with software, and hence the difficulty of writing regulations and standards that a government agency will have to abide by.

A philosophical argument against software patents:

Software patents are abhorrent to me insofar as all patentable software is pure math (algorithms - data like text and graphics are copyrightable expressions, but not patentable). To patent software is to grant a government-enforced monopoly on a set of mathematical operations to a person or group.

Yes, that means if you perform or cause to be performed a set of mathematical operations that someone else has patented, and are discovered, men with guns will come and stop you. Only the patent holders (and licensees, if applicable) are allowed to do this math; because it's a patent, it doesn't matter if you derived these mathematical operations independently or not.

It's hard for me to articulate the degree to which I feel this represents an unconsionable hindrance in the advancement of human understanding. What does society gain by having the government say who may perform what mathematical operations by beaurocratic fiat?

-Isaac

Re:Patents and You

Those 2 patents (one click shop and a one click warm up device for the car) are VERY different!!

One patents an implementation the other an idea. If you want to come up with your own device to start a car with a button you're free to do so. If you want to come up with your own way to make a site with '1 click shopping' you can't!! because they patented ALL the possible ways to do it (in effect).

thats just wrong.

"just connect this to..."
BZZT.