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Dear Mr Horn.
Poland govt. do not need to be educated in patent law. Poland got its own patent law and as one of EU members if developing "european patent law". I'm sorry that "Polish view" about what should be patentable do not correspond with Your opinions. It is the typical process of law discurs that there are different opinions. I hope You will not be using any propaganda arguments (about teaching goverments about law which are "in statu nascendi"). I know that as a patent attorney You see many profits if this Directive will be adopted, but please give us more "ad rem" arguments that this law is good at all. I do not want to speak about whole legal process about adopting this Directive. There are better articles about so called "lack of democracy" in EU based on this issue.
Sincerely Yours.
 
 

 

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From the Polish statement:

"In its current form, the draft directive does not meet Poland’s expectations because:

1. although it appears (in Art. 4) to disallow considering a computer program to be a patentable invention, in fact (by virtue of Art. 5.2) it provides for the possibility of introducing patent protections relating to computer programs as such whenever there are more protections concerning the object of the patent submission,"A computer program running on a processor belongs to the realm of the tangibles, whereas an invention ever belongs to the realm of the intangibles. So a program never can equal an invention and vice versa. But the ideas and concepts behind the code of a computer program can be related to that what patent law calls an "invention". The title words of the Directive, namely "patentability of computer-implemented inventions" make perfectly clear that a computer which in this sense consists of a software plus a processor forms an entity out of the realm of tangibles which is used to implement a certain idea which, if qualified by technicality, novelty, inventive step, and industrial applicability, might be a patentable invention out of the realm of the intangibles.

As I have indicated in my posting, the fact that someone commercially dealing with a certain piece of software code embodying such invention might face charges of (contributory) patent infringement in general is a feature of the patent system, not a bug. It is merely a consequence of the fact that patents are granted on intangibles but when being enforced they affect real-world persons commercially acting in conjunction with certain tangibles.

Article 5.2 of the Draft actually does not extend the definition of any patentable invention but is intended to facilitate enforcement (replacement of contributory infringement by direct infringement). I think there are problems with Art. 5.2 but not those considered by the various anti-patent campaigners.

"2. it states that also computer programs may be treated as computer-implemented inventions for they belong in the area of technology, and are thus bound by the provision of Art. 27 of the TRIPS Agreement. Because of this inadmissibly broad interpretation of the TRIPS Agreement, the draft directive contradicts Art. 52 (2) and (3) of the Convention on the Grant of European Patents, according to which computer programs as such are not considered as inventions,"I do not see anywhere in the Draft version of the EU Council that there is an assertion according to which "also computer programs may be treated as computer-implemented inventions for they belong in the area of technology""3. it recognizes simple use of a computer as 'technical', which is contradictory to the essence and understanding of an invention, adopted both in the Convention on the Grant of European Patents, and in the Polish legal system,"I do not see any problems why a computer = "software + processor" should not be considered as being technical. This is exactly the position of the Boards of Appeal of the European Patent Office. However, the crucial question is whether or not an invention which has been somehow made by utilising this entity "computer" has a sufficient relationship to a concept of "technicality". The Draft Directive answers this question by introducing the concept of a "technical contribution" required to establish an inventive step.

"4. it does not ensure the protection of interoperability, admissible on the basis of Art. 30 of the TRIPS Agreement. The draft directive allows for reverse engineering and decompilations analogically to the provisions of the directive on the protection of computer programs by means of copyright. While the exceptions provided for in that directive are sufficient in the context of copyright, Art. 6 of the draft directive does not actually enforce interoperability on a patent holder.This is a serious issue which perhaps might be dealt with during a second reading in the European Parliament. However, the ultimate broad definition of "interoperability" as proposed by the Parliament's version would render any patent protection meaningless.

Summarising up, my personal impression is that there is a "hidden agenda" behind the Polish statement. Of course, the Polish Government has access to brilliant patent experts. The question merely seems to be whether they really want to hear any experts skilled in patent law: At the front end, the Polish Government pledges to support of patentability of computer-implemented inventions. But some of the qualms sound so far-fetched as if in fact they want to see quite a reverse solution: To implement Mr. Stallman's utopia where no programmer would ever have to think of patents when commercially tinkering with software. This would, however, mean a destruction of the current patent system in a broad technical field of signal and information processing technologies.
 
 

 

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Mr. Horns, I have some questions for you.

Cited from the article:
> Since there seems to be no compromise -
> the EU either allows software patents
> or it doesn't - then anyone concerned
> with the matter must join one side or
> the other.

Do you agree to this position that there is no chance for a compromise at all?

Next one. You claim, that the pro-software-patent supporters are just about patenting CIIs like the ABS while they do not really aim at software running on normal computers.
But you also say, that we can not create a free zone for software engineers, because their computer programs could unfortunately infringe several CII patents.

If you really believe so, please tell me, how could the ABS patent infringed by a computer programm, running on a standard PC?

Next thing: if it is not about patents on software (not as "such", but running on a computer), would you be please so kind to explain me, why a pure software company like SAP demands your so called CII patents too? They *never* produced any hardware, maybe with exception to some mousepads with their logo on it.
If your claims were true, SAP could only become an infringer of CII patents, but they could never use them for their own products. So they demand a chance for other companys to sue them?

The same applies to Microsoft. Do they own their thousands of patents just on their computer mices, keyboards and force-feedback joysticks? This would be quite interesting: a computer mice protected by 400 patents...
 
 

 

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> Do you agree to this position that there is
> no chance for a compromise at all?Well, as the things stand now the positions of all the stakeholders concerning the Commission's Draft (with or without modifications) seem to be quite rigidly entrenched. The proposal of the anti-patent campaigners are simply inacceptable for large branches of the industry, and I clearly share this view.

But looking back to the early times of the debate on software-related patents in the late 90es of the past century I am inclined to say that from the very beginning onwards the entire debate seems to suffer a certain kind of undue narrowing.

Please see for example section 11 of the German Patents Act:

11. The effects of a patent shall not extend to

1. acts done privately and for non-commercial purposes;

2. acts done for experimental purposes relating to the subject matter of the patented invention;

3. the extemporaneous preparation for individual cases in a pharmacy of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared;

4. the use on board vessels of another State party to the Paris Convention for the Protection of Industrial Property of the patented invention, in the body of the vessel, in the machinery, tackle, gear and other accessories, where such vessels temporarily or accidentally enter the waters to which the territory of this Law extends on condition that such use serves exclusively the needs of the vessel;

5. the use of the patented invention in the construction or operation of aircraft or land vehicles of another State party to the Paris Convention for the Protection of Industrial Property or of accessories for such aircraft or land vehicles, where these temporarily or accidentally enter the territory to which this Law applies;

6. the acts specified in Article 27 of the Convention on International Civil Aviation of December 7, 1944, where such acts concern the aircraft of another State to which the provisions of that Article are applicable. I would like to focus on items 4 to 6 of this section. You might imagine that the increasing global trade over salt waters might have been hampered by patents covering e.g. inventive solutions in the body of a vessel, in the machinery, tackle, gear and other accessories. It would e.g. have been possible to sequester a foreign ship visiting the port of Hamburg, Germany, if this ship should have some equipment which is within the scope of protection of a holder of a German Patent. And, finally, ships might have been kept out of German harbours in fear of patent lawsuits.

If such problems would have been tackled in that time (at the end of the 19th century / beginning of the 20th century) in the same way as we are now discussion problems related to computer-implemented inventions we most probably would have to look back on a discussion whether or not a "tackle as such" should be patentable. Such debate would, however, have lead to nowhere.

Instead, they have made a much better choice: They have allowed patenting of "tackles" without any limitation. However, they have blocked enforcement of such a patent if certain conditions are met; i.e. in this case, "where such vessels temporarily or accidentally enter the waters to which the territory of this Law extends on condition that such use serves exclusively the needs of the vessel". Looking back, doing so seems to be a wise solution.

So I am inclined to think that it might have been less than a stroke of genius when the EU Commission decided to tackle some problems caused by the patenting of software-related inventions only on the side of the substantive criteria of patentability. However, they can hardly be blamed because of the previous discussion concerning an amendment of the EPC had been limited in the same way. And I can well understand the fears of politicians and civil servants to open a new line of discussion concerning additional exemptions from the enforceability of patents: They might well be inclined to believe that even thinking of this is like opening a Pandora's box. But looking at the entrenched situation we have now I am not sure that the Commission has enabled the full potential of its approach to obtain a pan-European harmonisation.

Hypothetically assuming that a not overly restrictive consensus would be within reach to generally allow patenting of any computer-implemented inventions provided there is some reasonably provable link to a technical problem the present discussion could be moved to another theatre of debate: Under which circumstances should the use of a computer-implemented invention be exempted from patent law?

I do not assume that finding answers would be simple. Simply demanding that e.g. running any piece of software under a GNU licence is exempted from patent infringement surely would be a non-starter. But more than five years of precious time have been lost in discussions which cannot solve the underlying problems.

In order to speak in figurative terms, if you are worried that your child in the toddler's age might be put at danger by electric power outlets in his or her room you might question whether electricity should be allowed at all in housings where small children live. This would be the equivalent of having a discussion whether computer-implemented inventions should be patentable at all. However, if you should prefer to cut off the entire building where the toddler lives from the electric grid you should not be too much surprised if other inhabitants of the house get angry because of they insist on making use of the grid. Alternatively you might consider to secure power outlets in reach of small children with a safety cap. This would prevent accidents without need to take away the grid from other users who want to make use of electricity. Such a measure would be the equivalent of a discussion on exemptions on the infringement side of patent law.

> Next one. You claim, that the pro-software-patent supporters
> are just about patenting CIIs like the ABS while they do not really
> aim at software running on normal computers.I never have said that. For example, there might be a patented invention drastically improving the colour calibration of a document scanner device. If, for example, programmers would create a related device driver for Linux which is implemented to do certain initialisation of the scanner device which falls under the scope of such a patent there would clearly be an infringement problem. And, frankly, I do not see why the inventor of some kind of colour calibration method for document scanners should not be awarded a patent.

> But you also say, that we can not create a free zone
> for software engineers, because their computer programs
> could unfortunately infringe several CII patents.Such "free zones" might perhaps be created by exemptions as discussed above. I have expressed particular proposals earlier elsewhere on the Internet e.g. to safeguard the freedom of expression and concerning procedures to obtain patent-free standards.

> If you really believe so, please tell me, how could
> the ABS patent infringed by a computer programm,
> running on a standard PC?Most probably you will not be inclined to install a PC in your car in order control the brakes thereof. But there might be a manufacturer of test equipment for the automotive industry. There might exist a stationary brake testing device controlled by a PC-like computer. So far infringing an ABS patent by tinkering with a PC probably might not as likely as infringing a patent related to inventions like initialising a peripheral device or the like. Under German law in order to commit a contributional infringement by tinkering with software, your software must not only be fit for the purpose but in addition be devoted to fulfil the technical teaching protected by the patent.

> Next thing: if it is not about patents on software (not as "such",
> but running on a computer), would you be please so kind to
> explain me, why a pure software company like SAP demands
> your so called CII patents too? They *never* produced any
> hardware, maybe with exception to some mousepads with their
> logo on it. I do not know what kind of patents SAP actually has obtained in Europe. I merely have heard that they are active to obtain patents in the US. Please never forget that in the US there is no statutory requirement for "technicality" as we have it in Europe since long. And even if the Council's version of the Draft Directive would eventually come through we would not have US conditions concerning the statutory requirement of technicality.

> This would be quite interesting: a computer mice
> protected by 400 patents... A computer mouse is never protected by any patent. An invention related to a computer mouse might, of course, well be patented. And a single tangible computer mouse might be a tangible embodiment of numerous patents granted on mouse-related intangible inventions ...
 
 

 

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For your information, SAP has pure software and business methods patents: http://gauss.ffii.org/Search/all/Applicant/Sap%2520Ag
 
 

 

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So I poked into

http://gauss.ffii.org/Search/all/Applicant/Sap%2520Ag

taking just EP publication No. EP1058902. And what do I find?

Some claims as granted in the US.

And what about the status of the EP application?

Well, epoline.org says that the application is still pending. And an on-line file inspection makes clear that the Examiner has refused to grant a patent on the claims as originally filed. Now the representatives of SAP are struggling to get a patent at least on a much narrower claim (almost two pages of features in claim 1). Nothing has been decided yet.

FFII seems not to have changed their strategy. Years ago I have complained to Mr. Pilch that they are systematically misleading the general public by mixing up laid-open patent applications and granted patents. In this case they seem to try to suggest that the claims as granted in the US have any meaning for the European Patent Office.
 
 

 

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The purpose of the link was to point out that SAP *have* currently EPO patents on *pure software* techniques (such as http://gauss.ffii.org/View/EP1066570). The status of the grant can be viewed in clicking on the concerned patent link.

Regarding patents granted by the EPO and pointed by FFII, all the webshop (http://webshop.ffii.org) patents are *granted* by the EPO. And they are broad enough to see that there is a problem with the status quo and the EPO practice.

And, again, few people will agree that those *broad* patents correspond to a specific product and has a real economic value.
 
 

 

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> FFII seems not to have changed
> their strategy. .. systematically
> misleading the general public by
> mixing up

Not so paranoid please.

> laid-open patent applications
> and granted patensts.

There are roughly 75k patent documents in gauss.ffii.org, can you suggest a way of automatically distinguishing between "laid open" applications, and "non-laid open"?

(If so, I'll implement it on the site, as I want the statistics to be as precise as possible.)

> In this case they seem to try
> to suggest that the claims as
> granted in the US have any
> meaning for the European
> Patent Office.

The data can only be as precise as what is provided by EPO.

If you go to v3.espacenet.com and enter the patent, the claims and description shown is for the US correspondent. Similar "pending" is derived from EPOs epoline data.

So if you want more precise data, please get EPO to post an updated EP patent claims and description, and get epoline to characterise the state more accurately.

--
Carsten Svaneborg
 
 

 

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With regard to EP1066570, a patent has in fact been granted. The patent has been published under number EP1066570 B1. The opposition period had lapsed last year on 30-07-2004 without any third party actually filing a Notice of Opposition.

Please note: The European Patent Office publishes

EP XXXXXXX A1 Laid-open patent application as originally filed with search report.

EP XXXXXXX A2 Laid-open patent application as originally filed but without search report.

EP XXXXXXX A3 Search report alone to supplement EP XXXXXXX A2 documents.

Patents granted by the EPO are published as

EP XXXXXXX B*

So, if you dig out an EP XXXXXXX A* document you can be sure that it was not examined by the Office. Only EP XXXXXXX B* documents are suitable for providing discussions of the patent examination practice of the EPO. In most cases the claims of B-type document differ from the corresponding claims in the related A-type document.

In the above-mentioned case the PDF file of EP1066570 B1 looks a bit corrupted - the EPO should be able to fix that.

Anyway, the method claims as granted do cover an invention related to searching data in a database. It might be quite interesting to discuss the concept of a 'technical contribution' using this example.

I haven't investigated the claims in depth; whether or not they are justified should be discussed vis-a-vis prior art.

The grant of the above patent was straightforward and unchallenged and has been checked neither by the Opposition section of the EPO nor by a competent Board of Appeal.
 
 

 

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To add an example for problematic effects of software patents: Here in Japan, Matsushita is right now heavily attacking the quite widespread office software "Ichitaro", based on a patent for a particular context-sensitive help function (in fact, the exact same feature was included in Word 6.0 and former versions of KDE, without being attacked by Matsushita).

Should such a gui design feature really be monpolized for decades?

(cf. the article on slashdot: http://yro.slashdot.org/yro/05/02/06/2110204.shtml?tid=155&tid=185&tid=17

I also wrote a small summary with links in my blog at swpat.blogspot.com).
 
 

 

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Should such a gui design feature really be monpolized for decades?Great Question roland. There can be little doubt that the effect of a patent on a widely used gui design feature, or any other commonly used software "tool" such as the b-tree would would be widespread and indiscriminate.

At a meeting with the Directive's opponents hosted by UK Minister of Science and Innovation, Lord Sainsbury, on December 14th in London this issue came up again and again.

Lord Sainsbury attempted to reassure the Directive's opponents by pointing out that:

"A patented invention made from a Meccano® set will incorporate, amongst other things, nuts and bolts. But that does not mean that the nuts and bolts are protected by that same patent. The patent covers the invention in its totality."

http://www.patent.gov.uk/about/ippd/issues/cii-meeting-transcript.pdf

The problem for software developers is that their nuts and bolts are not nuts and bolts. The nuts and bolts of software development are things like the b-tree algorithm, the model view controller, the GIF File format, the XML tag, and the GUI. When these things can be patented the effect on development is the same as if the individual pieces of an erector set were patented.

This is what the debate over “technical contribution” is all about – what things are nuts and bolts, and what things are patentable constructions thereof.

The problem with this point of view is that it assumes that there are no innovations to be had in the nuts and bolts which is where I part company with the Directive's opponents.

It seems obvious to me that software development is not devoid of human creativity and to assume that there is nothing to invent in software, or nothing left to invent, would be to confuse software development with typing.

At the same time, software development IS typing and if some of the keys on the keyboard are patented it creates hurdles downstream.

So a tension is created. Innovation occurs on more than one axis and I think it would be ill conceived to not award patents on all axes, but certainly some balance is necessary.


As PA Horns suggests, the balance will be found in "fair use" provisions for patent law.
 
 

 

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> The patent has been published
> under number EP1066570 B1. The
> opposition period had lapsed
> last year on 30-07-2004 without
> any third party actually filing
> a Notice of Opposition.

Ahh. Ok I understand. This is already implemented (although the heuristic could be improved):

http://gauss.ffii.org/Search/Applicant/Sap%2520Ag

Returns all patent documents irregardless of status, where applicant matches SAP.

http://gauss.ffii.org/Search/Granted/Applicant/Sap%2520Ag

Returns the subset that has been granted, e.g. where a document with kindcode B? exists.

http://gauss.ffii.org /Search/GrantedRecent/Applicant/Sap%2520Ag

Returns the subset that has been
granted within the last 9 months.
(not updated so these data are about
~3 months old, updating is work in
progress.)

http://gauss.ffii.org/Search/GrantedOld/Applicant/Sap%2520Ag

Returns the subset where the window
of opposition has been closed.

http://gauss.ffii.org/Search/GrantedInOpposition/Applicant/Sap%2520Ag

Returns the subset that has been granted, and is currently in opposition.

http://gauss.ffii.org/Search/GrantedOpposedMaintained/Applicant/Sap%2520Ag

Returns patents granted, opposed, but where the patent was maintained.
(none for SAP)

http://gauss.ffii.org/Search/NotValidGrantedRevoked/Applicant/Sap%2520Ag

Returns patents granted, opposed, but where the oppositing procedure was successfull, and EPO revoked the patent.

http://gauss.ffii.org/Search/NotValidRejected/Applicant/Sap%2520Ag

Returns patents applications that were rejected by EPO.
(None).

All the patent searches and statistics comes with the subclasses shown above, together
with a couple more for rejected, and withdrawn patents.

(Are there catagories that would be relevant, that I could add?)

--
Mvh. Carsten Svaneborg
http://gauss.ffii.org