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What an excellent example, because although his basic telegraph claim was upheld, the U.S. Supreme Court disallowed Morse's claim on telecommunications (O'Reilly v Morse, 56 U.S. (15 How.) 62 1853).

They justified this by what was a basically economic argument: that Morse's claim on telecommunications was basically bad for consumers.

I've read a lot of patent attorneys talk about software patents from the perspective of categorizations: if we categorize technologies in such a manner, then it looks just like this other technology which should be patentable. But most people don't care about legal categorizations, we care about what the economy will look like after a new law is passed.

The UK has done a great job of defining the game in terms of technical contribution, because that means that the important economic questions don't get to be asked anymore.

I've been reading your blog for a while now, and am a bit disappointed to see that you've never asked these questions either. You've stated a few times over that software is just like any other industry, because from your patent attorney perspective they look the same.

But here in the real world, software is pretty darn different. Only drug companies make drugs, but everybody with a computer makes software of some sort; how would patents work in a massively decentralized industry? Up front investment costs are significantly lower for software, which, by the usual economic analysis, implies that patent breadth should be smaller; how should that be achieved? Any piece of software is a mathematical algorithm, in a very literal sense that can not be said of the algorithms driving physical machinery; in the past people felt that society is better off when mathematics is in the public domain, so what new analysis has said that it should be privatised?

So I entirely agree with you: the question should not be about drawing a fine distinction as to what is a technical contribution, but the economic issues, which the EC, patent attorneys, and our friends in the UK have entirely avoided.
 
 

 

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I just saw this posted by an anti-patent activist "bportlock" on the blackboard section of nosoftwarepatents.com:

"I have just registered to go to one of the roadshows being advertised by the UKPTO. At the end of the registration form it asks for a definition of a 'technical contribution'. My reply was that the term is misleading and the term 'mechanical contribution' would be better as it clarifies the intention to limit patents to the physical and mechanical world."This snippet nicely illustrates what those anti-patent campaigners really want: To 'bomb back' the patent system to the oil-encumbered mechanical steam engines of the 19th century by excluding electrical signal and information processing of any kind.

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Today's patent law does not have patentability criteria like 'advantages for the consumers', 'technical progress' or the like.

The distinction between 'technical' contributions and 'non-technical' contributions was intended to improve the basic criterion of the 'inventive step'.

The four basic criteria of (European) patent law are:

- Technicality of the claimed subject-matter in its entirety
- Novelty
- Inventive step
- Susceptibility to industrial application

I do not think that the shape of a desirable patent system can be entirely inferred from economic first principles. A patent system can be used as a 'tool' to shape a society and its economy by granting certain incentives. A properly implemented patent system (where the Patent Office taking all steps to avoid grant of 'trivial patents', i.e. patents lacking the inventive step) surely can be seen e.g. as a tool for fostering globalisation in a sense that it facilitates the outsourcing and geographical separation of research and development, on the one hand, and production and consumption, on the other hand. It is a political, not an economic question whether or not you desire to facilitate such globalised outsourcing effects.
 
 

 

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> This snippet nicely illustrates what those anti-
> patent campaigners really want: To 'bomb back' the
> patent system to the oil-encumbered mechanical
> steam engines of the 19th century by excluding
> electrical signal and information processing of
> any kind.

You made here two false statements in just one sentence. First, most of the opponents against software patents do not try to abolish all kind of patents. They are not "anti-patent", they are "anti-software-patent". Most of them are not even "campaigners" as stated by you, they are normal people defending their jobs and their future.

Your second false statement (is your position so weak, that you have to make false claims, Mr. Horns?) is, that people who are against software patents do in reality try to "bomb back" the patent system into 19th century.
There may be a minority who try -maybe frustrated by people like you- to abolish patents as a whole, in the same way as there are patent attorneys who try to patent everything under the sun, but this is by far not the majority.

Why, in example, should I as software developer be interested to abolish patents on new chemicals? I am not. I just want to avoid that people can successful sue and threat me for using help icons, progress bars, one-click orders and other patents of this kind. Somehow this is today already enough to be insulted as being a sort of a "modern day communist".

My and most of my fellows motivation is pure desperate defense against being bombed to ground zero by bigger and richer companies supported by patent attorneys like you are. There are reasons why as good as no software developer supports software patents.

By the way, if you really believe in your claims, we can always talk personally about the issue. In my eyes the attack apparently is coming from you and your fellows. You are not only trying to defend laws that are already established, but you try to extend them more or less silently to make software patentable. Oh sorry, you would never do that, you are just interested in patents on software running on a computer, I forgot this :-(.

Isn't it a bit thick by you to claim now that in general harmless software developers are the aggressors in this "game"?
 
 

 

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Well, if you want to dissociate yourself from "bportlock" who wants to establish a new mandatory criterion of a 'mechanical contribution' in order to establish the inventive step, such move would, of course, be always welcome.

But - at a matter of fact, patents on computer-implemented inventions have since long been allowed not only by the Patent Offices but also by the respective competent Courts like the German Federal Supreme Court ('Bundesgerichtshof') or, with regard to the European Patent Office, the 'Boards of Appeal' of the EPO.

So far no patents on 'computer programs as such' have ever been granted (or even earnestly desired by any applicant).

But it is an intrinsic feature of the patent system that a patent granted on an (intangible) invention may, when enforced, have effects on various classes of tangibles. So, although there are no patents on 'software as such', a valid patent granted on a computer-implemented invention can have the effect that commercially acting with a piece of software which, when run on an appropriate processor, would substantially reproduce the technical teaching of the patented invention, constitutes a case of (contributory) patent infringement.

If now some activists want to get to a changed legal situation where tinkering with software can under no circumstances constitute a patent infringement, even not a contributory infringement, then there is no way to reach such a state of affairs other than cutting back the patent system. ffii.org and nosoftwarepatents.com are full of particular proposals how to cut back the patent system in order to achieve this goal.

Summarising these facts:

a) Most patent professionals, the EU Commission plus the EU Council are forming a 'conservative' cluster desiring to preserve the legal status quo where patents on computer-implemented inventions are allowed at least under certain additional conditions.

b) FFII, nosoftwarepatents.com and others desire to have a different state of the affairs where patents on computer-implemented inventions are not allowed even under any additional conditions unless it can be made sure that tinkering with software can under no circumstances constitute a patent infringement, even not a contributory infringement. Mr. Stallman, "bportlock" and maybe others have recognised that such a project requires an exclusion of a wide scale of inventions from patentability which are somehow related to software running on a computer. In theory, they would have to demand that also 'computer-implementable' inventions should be banned from patenting because of each patent on a 'computer-implementable' invention might be enforced against persons commercially acting with software.

And, please do not again argue with such statements like "Article 52(2) EPC bars patenting computer-implementing inventions". The only competent institutions to check this, the national Courts and the Boards of Appeal of the EPO, they all have said that a proper interpretation of the clause does not in general prevent the EPO from granting patents on computer-implemented inventions despite the indisputable fact that such patents might under certain circumstances be enforced against persons commercially dealing with software. The only argumentative way to get around this obstacle and at the same time retain your preferred interpretation of the law for you would be to argue that this is 'perversion of justice' (what Mr. Pilch did two or three years ago) and call for a bloody revolution to smash the Courts and the Boards of Appeal of the EPO (what up to now nobody did). I can only urge you not even to think of that.

The other way for you would be to acknowledge that the patent law as it stands does well allow patents on computer-implemented inventions and you might perhaps call for a change of law. However, in this case it is perfectly clear that you and your co-campaigners do want to have a change of law, not the patent aware companies, not the patent professionals, not the EU Council, and not the EU Commission. When drafting the original version of the Directive on the patentability of computer-implemented inventions it was the proper intention of the EU Commission to codify a 'snapshot' of the current state of Case Law of the Boards of Appeal of the European Patent Office. No more, no less.
 
 

 

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Again one sentence of your article shows the problem:

> When drafting the original version of the Directive on
> the patentability of computer-implemented inventions it
> was the proper intention of the EU Commission to codify
> a 'snapshot' of the current state of Case Law of the
> Boards of Appeal of the European Patent Office. No more,
> no less.

This is absolutely true. And it is exactly this "case law" made by the EPO, which is much more permissive than the decisions of the BGH even today. (And the BGH of the last six years is again much more permissive than the BGH of 1991, just as an example).

And that's exact the point. You and your campaigners try to fix the EPO "standards" of today, which are deep below the even most permissive decisions the BGH made in the last few years, into a new European patent law.

And yes, the BGH became much more permissive the last few years than any time before. But it is by far not as permissive as you try to describe it. We do not have to go back to the "red dove" case of 1969 to find decisions, which had not been so permissive. One example is the "chinese characters" decision from 1991, where the patent was not granted.

In fact "case law" can change, as it did the time before. If the judges see that too permissive decisions lead to a abuse of software patents, like in the USA or Japan, they probably will make their decisions more restrictive again. The holders of many EPO granted trivial software patents know this, which is one reason why most of them don't try to enforce them yet. Because they know that losing such an enforcement battle in the courts renders their patent useless for all time and may change case law to be more restrictive again.

In fact for the time being we have many trivial software patents in Europe, granted by the EPA, but contrary to the USA or Japan we have as good as no big enforcement battles for them.
Or would you be able to tell me about any rather trivial patent like the japanese "help icon" or the Adobe "tabs" patent, that had not only been granted by the EPO (many had), but that was also able to withstand at the BGH?

The only way to avoid such huge losses in real patent battles at the courts is to change the rules of the game before starting them. If the current, very permissive patent granting behaviour of the EPO makes it into the law, it will be much harder for the judges to make decisions that would again create a more restrictive "case law".

And please, if we are only talking about some patented but rather technical machines, like in ABS, as you try to suggest, would you then please be so kind to explain me why a company like SAP had also begun to apply for software patents here in Europe? They do not produce any piece of hardware, and they never did.
Also the some thousand European patents of Microsoft are a bit suspicious in this light. Or had they all been applied tho their computer mices, keyboards and force feedback-joysticks?

Summarising these facts:

a) Case law on software patents had been mostly restrictive for many years, especially in the courts.

b) This changed to some degree in the courts, but especially at the EPO, which is granting today many rather trivial patents that are granted in America too.

c) Problem for supporters of software patents: Chances are very high, that huge enforcement battles for this patents could lead very fast to a much more restrictive case law again.

d) So they try to fix the most permissive status quo of the EPO in the law. After doing so even many rather trivial patents could be enforced at the courts with a good chance of success.

Conclusion: you and your fellows are the "aggressors", not the FFII and people like me, who are just trying to defend their future. You and your campaigners try to enforce the current practice of the EPO into the law, so that the courts lose their chance to return to a more restrictive practice again.
This is somehow understandable, because as a patent attorney you could earn huge amounts of money in the coming patent battles. The USA with their skyrocking expenses for patent processes show this abundantly clear. But as a software developer I am are more keen on investments in software development than on investments in litigation. And, what is much more important, I do not want to lose my own, copyright-protected work to litigators just because my software "injures" one of their fantastic patents on changing the color of a klick button or something similar trivial.

The only thing you could complain about (and so you do), is that the FFII now, where at least a small chance is given, tries to change the patent law in a way that avoids also some permissive decisions from the last years. Given the fact how hard many attacks of the pro-software-patent campaigners had been, and given the fact how rude and quite brutal big patent holder companies like Microsoft are and were acting against their opponents, it stands to reason that the FFII tries to eliminate the lurking threat of trivial software patents once and for all time.
 
 

 

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> Conclusion: you and your fellows are the "aggressors",
> not the FFII and people like me, who are just trying to
> defend their future. You and your campaigners try to
> enforce the current practice of the EPO into the law,
> so that the courts lose their chance to return to a more
> restrictive practice again.

Er, hmm, I'm said to be the aggressor (plus my "fellows", who exactly are my "fellows?) because of I try to "enforce" the current practice of the EPO??

Strange logic.

The Boards of Appeal of the EPO are legitimate counterparts to national Courts. Why should it be an act of aggression to codify their case law? Such movements of codification often have been made (on a national level). For example, in Germany the doctrine of contributory infringement once has moved from case law into codified law.

The true reason of your rage seems to be buried in this quote from your posting:"[...] not the FFII and people like me, who are just trying to defend their future [...]" The common cause of you and your co-campaigners is not the fate of anything like the commons but your and your co-campaigner's particular preferences concerning a desirable status of economic well-being. You have insofar delivered an honest statement which surely is, taken as such, not undue. But, when confronted with the desires of other industries demanding to have a strong patent system, where is the beef in your arguing? And what about larger political issues like fostering a globalised capitalistic economy where knowledge can be subject to trade?

> The only thing you could complain about (and so you do),
> is that the FFII now, where at least a small chance is given,
> tries to change the patent law in a way that avoids also some
> permissive decisions from the last years.

I am not afraid to discuss problems of the patent system as it stands. And I am not hesitating to support reforms wherever necessary. But I do complain that

a) the FFII and other anti-patent campaigners do their propagandistic efforts (and - so far - win their propagandistic battels) on the basis of blatant misrepresentations of the facts, and

b) the FFII and other anti-patent campaigners intend, in the effect, to destruct the patent system which is increasingly used by larger parts of the industry (see rising numbers of applications during past decade or so).

My complaints under a) are based on my professional knowledge of the Intellectual Property system.

My complaints under b) are based on my analysis of the measures suggested by the FFII and other anti-patent-campaigners in view of the ultimate consequences thereof as well as of the feedback of the IP-aware industry which was given by them to politics and to the general public in response to the anti-patent campaigner's proposals.
 
 

 

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This semi-monopolistic, patent-happy software firm took the name ADOBE from native Americans without asking - I presume!? -
That could get very expensive.


Gisela Strauss
Tech Translator
Munich

http://translationfound.blogspot.com
 
 

 

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First of all I'd like to object your propaganda of smearing the other side as "anti-patent". In fact almost all of them are PRO-patent.

It is not anti-patent to say that non-inventions should not be granted patents. I would say it is a very pro-patent position to want to ensure that inventions and only inventions are granted patents. The debate is over the definition of invention.

The problem here is that there is no such thing as a "computer implemented invention". It is physically impossible. The only thing that a computer can implement is a calculation. Logic, math, calculations, mental steps, these things are not inventions. Teaching new and non-obvious physical objects and teaching new and non-obvious physical processes may be patentable inventions. "Processing" information is a calculation, not a patentabler process. Teaching new and non-obvious "information processing" is teaching MATH, not teaching an invention.

You can certainly connect a computer to an invention, or include a computer within an invention, but the computer and the software can only do calculations. Any new teaching about math cannot convert an ordinary old computer into a patentable object, and any new teaching about math cannot convert an otherwise non-patentable physical process into a patentable one.

US mid-level courts led the charge to expand patents to software, but I'd like to cite the US Supreme Court on why the lower US courts were in error in doing so and why the EU is wrong in attempting to do so now. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," it is treated as though it were a familiar part of the prior art. Numbers, math, algorithms are NOT FEILDS OF TECHNOLOGY. Software is nothing but a math algorithm, a math calculation. Software is a feild of math, not a feild of technology. As such it software cannot contribute novelty or non-obviousness towards patentability. A patentable invention must have novelty and non-obviousness outside of mathematics itself.

Someone may find a 100 digit number no one has ever seen before (novel). That 100 digit number may be extremely non-obvious. That 100 digit number may be extremely useful. However a number is not an invention and cannot be patented.

An ordinary computer plus this novel non-obvious useful number is not an invention, not validly patentable. A patent claiming this number + an ordinary computer is teaching a number. It is making a math contribution, not a techinical contribution. A patent claiming software + an ordinary computer is also making a math contribution, not a technical contribution. Math contributions do not get patents.

If the thing you are fundamentally teaching can actually be done mentally then you are not teaching an invention. You are teaching a sequence of mental steps, teachign a series of thoughts. Perfect excamples are the LZW compression patent and the RSA cryptography patent. Both of these things can be done purely mentally. Running software purely mentally is a routine part of writing and debugging software. Programers literally carry out the software (the patent) in pure thought. It is absolutely absurd to sugest that someone could violate the law by thinking certain thoughts. Thought crime.

A sequence of thoughts is not an invention, and there is absolutely nothing inventive in the blatently obvious "teaching" that those thoughts - those calculations - can merely be carried out faster on an ordinary old computer. The calculation itself is not a patentable process, and obviously claiming that exact same calculation on an ordinary computer does not magically make it patentable.

Programmers are authors, and as such warrant COPYRIGHT protection. Copyright and patents do not and should not overlap. Attempting to violate this line and create double coverage is just plain broken.