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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, November 23, 2004Yet another Joint Statement of Prominents on "Software Patents". Mr. Linus Torvalds, Mr. Michael Widenius and Mr. Rasmus Lerdorf are said to have launched a joint statement on the Draft Directive on the patentability of computer-implemented inventions (albeit, the text of the statement looks as if they might have hired a competent ghost-writer, maybe Mr. Florian Müller or so). Inter alia, the statement says:"[...] The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability. However, it is actually a compilation of the entirety of the excuses with which the patent system has, for many years, been circumventing article 52 of the European Patent Convention in order to grant patents on software ideas.I am sure that this kind of "hair-splitting" can be avoided once and for all if those anti-patent campaigners would only be prepared to pull themselves together to declare authoritatively what they wish to understand when talk comes to define the expression "exclude software from patentability". Do they really mean that software is excluded from patentability if and only if no tinkering with any kind of software on any kind of related processor can ever be construed as being a direct or contributory patent infringement? Ok, if this could be assumed to be true, the consequences would be quite clear: The Draft Directive should then simply ban each and every claim the subject-matter of which could be seen as being computer-implementable. In consequence, this would also mean that the patent system is reduced to chemistry, biotechnology, mechanical engineering and some branches of high-power electrical engineering. Each and every invention that deals with signal processing would be rendered unpatentable. Needless to say that such radicalism would not have the slightest chance of being adopted as a general EU policy. Clearly, the present Draft Directive politically endorsed by the EU Council would allow certain claims which might be infringed by (commercially) tinkering with software on a related computer. If this fact is interpreted by the various anti-patent campaigners in a sense that the Directive "introduces" or "allows" patents on software, let them stick to their statements provided that the general public and in particular the politicians are taught what consequences such arguing must have: The destruction of the current patent system as it stands now. I am quite sure that many politicians who express their sympathy with anti-patent campaigners are unaware of the final consequences of such a desire. When patent law specialists are talking about patentable subject-matters they normally do not think of the infringement side of the patent system but of categories of intangibles eligible or not eligible for patent protection, e.g. business methods etc. pp. The reason for this somewhat difficult to understand usage is that a patent performs some kind of a transformation: In real life, a patent by virtue of its legal effects does not act on the (intangible) subject-matter of the granted claims but on different (tangible) items. In any case, an invention belongs to the realm of the "intangibles". If a patent claim reading "electrical motor, characterised in that ..." has been granted, the invention is not identical with any real life electric motor hardware. The invention is the intangible idea behind a novel construction of an electric motor, the intangible idea being identifiable by the list of features as conveyed with the claim granted by the Patent Office. However, if someone manufactures or sells electric motors, there are real-life instances of electric motors which are affected by the legal effects of the patent: They are not allowed to be manufactured or sold, or, in extreme cases, they might be seized or even destructed. And, in view of contributory patent infringement, real-life objects not falling into the category of the generic clause of the patent claim as granted might be affected. For example, if a patent is granted on a novel passenger elevator with an improved control unit equipped with a software running on a microprocessor providing jerk-free ridings, such patent clearly would bar any (unlicensed) business models like that of an "elevator tuning shop" where a clever software coder upgrades elevator control units of various manufacturers by flashing an improved software into the controller implementing the same mode of jerk-free controlling of the elevator of said patent. Yes, and such a clever guy might cry foul, shouting that the evil patent system blocks him selling and installing his software (that, we should assume here, he has written from scratch so that there are no copyright problems to be expected) to owners of elevator installations throughout the EU. But exactly that would be the goal of patenting: Preventing such guys from having a free ride when simply copying the essential features of a patented innovative elevator system. The Draft Directive deals with the question of which category of computer-implemented inventions should be patentable. It is a feature, not a bug, of such a Directive that, although no software ("as such", if you like) is patented, commercially tinkering with software in a technical environment might be construed as a form of patent infringement. [UPDATE0] See also the discussion on Slashdot
[UPDATE1] See in particular this posting on Slashdot.
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