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"The latest draft directive of the EU Council of Ministers (May 2004) takes into account all interests."

It seems that they have forgotten to take in account 380.000 people who have signed the Eurolinux petition against software patents.

It is inadmissible from the pro-patent lobby to spread FUD that the Council text does not allow software patents.

If all experts do not agree on the interpretation of the Council text, there is a real problem.
 
 

 

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> It is inadmissible from the
> pro-patent lobby to spread FUD that
> the Council text does not allow
> software patents.
>
> If all experts do not agree on the
> interpretation of the Council text,
> there is a real problem.

Well, I am inclined to say that this problem is closely related to the degree of fuzziness with regard to the various definitions of the term "software patent" as utilised by the anti-patent campaigners.

Let us have a test: Would you like to say that every patent which can theoretically be used to successfully sue someone who is commercially tinkering with software qualifies as a "software patent"?

OK, I would like to call this approach "Stallman's Utopia": If you are fighting for a world where no patent can ever be enforced against anybody commercially tinkering with software, you would have to advocate a ban on patents not only on computer-implemented inventions but also on computer-implementable inventions.

The current Draft Directive in the version preferred by the EU Council (taken by the political agreement of May 2004) clearly is incompatible with "Stallman's Utopia": It allows the grant of patents which can be enforced against people who are, under certain circumstances, tinkering with software.

However, amongst patent experts it is commonly agreed that a patent can be enforced against someone commercially tinkering with software even if no "software as such" is patented: On the left hand side of the legal patent equation, i.e. on the side of the patentable subject-matter, we ever have an "invention" from the realm of the intangibles. On the right hand side of the legal patent equation, i.e. on the side of the enforcement, we have real-world people barred from doing something with tangible real-world objects, e.g. barred from tinkering with a computer having a certain software running thereon. And, we have the doctrine of "contributory infringement", i.e. even if not all features of a patent claim are embodied in a certain real-world situation, there might be (under some additional restrictive circumstances) be a case of a patent infringement. And, don't forget the doctrine of equivalences. In the effect, the enforcement on the right hand side can be directed against some wrongdoing that is not trivially identifyable on the left hand side where the patented invention is defined in terms of the claim language.

So I think it is a feature, not a bug, of the patent system that despite the fact that the Draft Directive in the version of the EU Council does not allow "software as such" on the left hand side of the equation, the enforcement on the right hand side can potentially well go against infringers tinkering with software in a commercial environment. But in this sense, the experts from the EU Council as well as from the pro-patent industries are right in insisting that the current Draft Directive in the Council's version does not permit "software patents" in the sense that patented subject-matter is software as such.

However, on the other side, if the anti-patent campaigners say that they oppose the EU Council's Draft Directive just because they think that they can be sued on the basis of patents on computer-implemented inventions when commercially tinkering with software, their complaints would be more coherent if they would state this more expressis verbis.

What has happened since years is that politicians are lobbied by the various anti-patent groups saying "we do not want to have software patents". Then the politicians go to the patent experts and receive an advice to the effect that such -and-such wording of the law "clearly does not allow software patents" in the sense that the patented subject-matter will never be "software as such". With this message the politicians again turn to the anti-patent activists, getting an angry response: "See here, there and there guys are sued because of they have commercially tinkered with software". As most politicians are not IP Law experts, they get really confused of this.

But the fuzziness of the language of the anti-patent lobbyists clearly has a tactical aspect: If they would stand up clearly demanding "We insist that the patent system is crippled in a way that nobody can ever be sued on the basis of a patent when commercially tinkering with software" one or the other of the involved politicians might start thinking and understand the enormous consequences of such proposal. So, many activists might prefer to talk about banning "software patents", provoking a misleading impression that such amendment of the law would be something like a "limited reform" of the patent system.

It would surely not be such a limited reform: Each and every act of information and signal processing can in theory be done by a von Neumann general purpose computer embodying a Turing Machine. This is what the term "computer-implementable invention" means: Any invention potentially suited to be embodied by means of a computer. So, implementing Stallman's Utopia means that each and every patent claim would have to be scrutinised whether or not it can potentially be embodied by means of a computer, throwing out every claim entirely consisting of features which, if taken together, can potentially (i.e. by their functionality) be embodied by means of a computer plus software.

For example, if a feature says that a "low pass filter" is placed in a signal path, this feature would clearly be "computer-implementable" because of a low pass filter can be implemented not only by means of a network of capacitors and resistors but also by means of a computer provided with analogue-to-digital and digital-to-analogue-converters.

The patent system would be reduced to mechanical engineering, electrical high power systems (where the electrical current does not transport information but merely energy) and chemistry including biotechnology.

Not very surprisingly, larger parts of the industry are not amused by any prospect to see the patent system reduced this way. And, most of the politicians would no longer support the anti-patent campaigners if they could clearly understand these consequences. Implementing Stallman's Utopia throughout Europe would be irresponsible, simpleminded and, therefore, insane.

But it seems as if for the anti-patent campaigners the time for researching the concepts of patent law has passed by. They are not interested in any such discussions. They have since long switched over to something like a political brute force approach to win the "patent war" by all means, in particular by their sheer numbers. This tactics even seems to include insulting and denouncing the people of a whole nation, say, the Irish, because of a certain disliked Commissioner presently in charge with the Directive is an Irishman.
 
 

 

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The paragraph above should have read:

"OK, I would like to call this approach "Stallman's Utopia": Then you are fighting for a world where no patent is ever granted which is potentially enforceable against anybody commercially tinkering with software, you would have to advocate a ban on patents not only on computer-implemented inventions but also on omputer-implementable inventions."