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EU Software Patents Directive: Comments? 32

Master Of Ninja writes "The EU has recently published a directive on software patents. Now the UK patent office wants comments on the draft directive, and specifically how they relate to the conclusions of a UK consultation on software patents. The patent office has set up a page detailing the work of the EU Directive and their stance on it. I also received an email today (Note -- this email below) asking for comments on this topic (which I will post here, as it is not on the website, and as it is in everyone's favourite .doc and .pdf formats).

EUROPEAN COMMISSION PROPOSAL FOR A DIRECTIVE ON THE PATENTABILITY OF COMPUTER-IMPLEMENTED INVENTIONS

In March last year the Government published its conclusions on whether patents should be granted for computer software or ways of doing business, following a consultation exercise. The central conclusion was "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." But an urgent need to clarify the law was identified. Ways of doing business should remain unpatentable. The Government's conclusions are available at http://www.patent.gov.uk/about/consultations/concl usions.htm

Since then the Government has been pressing the case for action at European level, and last month the European Commission published its long-awaited proposal for a directive, available at http://europa.eu.int/comm/internal_market/en/indpr op/02-277.htm

The Patent Office invites views on how far the proposal for a directive meets the objectives set out in the Government's conclusions. In particular, we would welcome comments on:

whether the proposal is clear;
whether it deals clearly and satisfactorily with computer-implemented business methods where the inventive step is in the business method;
the treatment of the form of claim, in relation in particular to claims for programs.

We would welcome comments by Friday 7 June. These should be emailed to policy@patent.gov.uk or posted to:
Robin Webb
Room 3 B 40
The Patent Office
Concept House
Cardiff Road
Newport
NP10 8QQ

The directive, if enforced, will become "law" throughout the EU, so here's a chance to influence how software patents are enforced in an area covering hundreds of millions of people. The comments should be sent to policy@patent.gov.uk as it says in the letter. Hopefully there will be someone wanting to comment on this since the last time the UK government wanted advice on open source software, only 7 comments were put in. Flamers and trollers need not apply."
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EU Software Patents Directive: Comments?

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  • by koto54 ( 539444 ) on Friday March 15, 2002 @07:10AM (#3167306) Homepage
    They have already been a consultation on this. Here is the answer [eu.int] of the commission about this consultation :

    "Many of the responses supporting a more restrictive approach than at present [...]. Although this group numerically dominated (90%) the response, the major sectoral bodies representing the information and communication technology industries, as well as many of the Member States, all supported the approach put forward by the discussion paper."

    So, even if 90% of the comment are AGAINST software patent, it doesn't seems to really trouble the commission.

    So much for the democracy.

    Why would it be different here ?

    • >So, even if 90% of the comment are AGAINST
      >software patent, it doesn't seems to really
      >trouble the commission.

      90% of what? 90% of votes cast? A Web-linked vote from a GPL fanatic vs. a vote from a rep of a major employer/tax-payer/telco?
      Get real....

      >So much for the democracy.
      >Why would it be different here ?
      That's right, hopefully it won't.

  • Hi!

    What this commentary period is for is allowing the UK patent office to hear your views. So rather than having the EU ignore you, the hope is to get the UK government/patent office to apply pressure by proxy.

    I'm a bit disappointed that more people aren't interested in this, with the longest post I've seen being a troll in German. I'm sure there are a lot of people in the UK (and the EU) who must have an interest in this. Even if you're from the USA or Canada, I would still say put a post in.

    If you are reading this, make an effort to read what is going in. Remember democracy doesn't work if you don't participate, so don't start bitching later when laws you don't like are passed.
  • I've read the draft directive and it is unclear. Imagine that a manufacturer of drilling machines invents a torque controller to reduce drill bit breakage. In the past that would have been done with slipping clutches and springs, and obviously would have been patentable. Today one does that kind of thing in software. However Article 52 of the EPC excludes:
    (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers
    Has the realm of patentability effectively been narrowed? The directive clarifies that the drilling machine manufacturer can patent his new machine and claim royalities from other drilling machine manufacturers even though the invention lies solely in the software embedded in the machine. Unfortunately the directive clarifies this area of law by confusing another. What happens when there is no drilling machine, when the invention is only a computer program? For example a data compression program that runs on a general purpose computer. The directive suggests that the general purpose computer, implicit in the notion of a computer program, counts as a machine in the way that the drilling machine did, thus extending the scope of patentability, directly contrary to 52(2)c.
    • The EPC only excludes patents on software as such, not on all software-implemented inventions. The Board of Appeals of the European Patent Office has interpreted this provision to mean that you can get a patent on software if it solves some problem in technology (they call it a "technical problem"). You may want to read The patentability of software under the EPC [iusmentis.com] at my website.

      In your example, reducing drill bit breakage would be a technical problem, and solving that by adding particular new software is then patentable. In fact it doesn't matter that the solution was realized in software; if you have a solution to a technical problem, you get a patent (unless the solution is obvious).

      The proposed directive says the same, but also that you can't get a patent on the computer program itself, only on the drilling machine loaded with the software.

      • Your website says

        It doesn't have to be external to the computer on which the program is run; reduced hard disk access time or an enhanced user interface could also be a technical effect.

        Which implies that my second example, of a data compression program that runs on a general purpose computer, is patentable, because it has a technical effect.

        This creates a serious difficulty in the interpretation of section 52(2)c. Computer programs that lack a technical effect cannot be the target of the exclusion in this section because lack of a technical effect already excludes them from patentability. Computer programs that possess a technical effect are not the target of this exclusion because possession of a technical effect exempts them from the exclusion. So what does the exclusion exclude?

        • You've hit on exactly the same problem as the Boards of Appeal of the EPO did. If you look at article 52(2) [european-p...office.org], you'll notice that it starts with "The following in particular shall not be regarded as inventions within the meaning of paragraph 1". It then follows with a list of things, including computer programs. Next, article 52(3) says "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." So there must be some kind of limit to this exclusion, otherwise the "only as such" phrase makes no sense.


          The Board of Appeals of the EPO reasoned that the things in the list of 52(2) have in common that, when considered as such, they are not of a technological nature. And because it says "in particular", it must follow that an invention, to be patentable, must be within the technological arts. The 'as such' stresses this: a computer program as such is a mere algorithm or abstract thing, but a computer driven by a program is a technological thing and so not excluded because of the 'as such'.


          So, basically, the exclusion paragraph of 52(2) and (3) does not exclude anything that wasn't excluded already anyway. It's just a way of stressing the fact that an invention should be technical by enumerating things that clearly are not technical. This is one of the reasons that the EPO tried to get this part of article 52 removed completely back in 2000.


          I don't know why the EPC didn't say from the start "An invention shall be of a technical nature". Apparently they thought this was self-evident, and just gave a list of potential borderline cases to be safe.


  • This link also provides a good list of the previous objections raised to the introduction of patents.

    http://www.patent.gov.uk/about/consultations/ann ex c.htm
  • We need to start kicking up a fuss about this to the mainstream media, the results stink. The Patent Office has a clear conflict of interest in this situation and this is reflected in their position, a clear contradiction of the results of the Consultation Excercise.

    The Patent Office will benefit from the 'power grab' following the expansion of patents, yet they are the ones, managing the consultation excercise.

    The consultation produced a clear indication that software patents are not needed or wanted.

    Yet the Patent Office has choosen to completely ignore this position and support the introduction of Software Patents in the EU.

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