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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, March 06, 2005EU Council: Big Showdown on Patentability of CII to happen just to-morrow?Well, tomorrow March 07, 2005, Brussels will see the 2645th meeting of the Council of the European Union in the Competitiveness Configuration (Internal Market, Industry and Research). And there is a topic "2" on the agenda which reads:"Approval of the list of 'A' items 6810/05 PTS A 10".But Document 6810/05 is silent on the Draft Directive on the patentability of computer-implemented inventions. Did the Luxembourg Presidency of the EU Council fail to put that matter on the agenda?No, not at all. There is another Document 6810/05 ADD 1 saying:"[...] Public deliberation itemHence, it looks as if the stage is set: "Public Deliberation Item" means that the general public will be able to watch the (final?) showdown. The anti-patent protesters have triumphantly announced (see FFII, nosoftwarepatents.com) that Denmark will refuse to accept the formal adoption of this matter as an "A"-Item; to the contrary, it was said that Denmark will insist on re-opening the discussion of that matter as a "B" Item. They say"[...] This afternoon, the EU Policy Committee of the Danish parliament took a binding decision (i.e., not just a resolution that a government is legally free to ignore) that the Danish government shall oppose the adoption of the current proposal as an A item (an item for debateless approval) in Monday's meeting of the EU Council, and shall request that the proposal be renegotiated (as a B item) in the future.But on the other side it seems to be clear that "[...] Minister Bendtsen (Conservatives) did not want to reopen discussions, but the minority government he is part of was overruled by a coalition consisting of a.o. Social Democrates and the Social Liberal Party in the Parliament's EU Affairs Committee. [...]"So, the voting was merely in a Committee rather than in a full plenary session. Can a vote taken in a Danish Parliamentary Committee be binding for the Danish Government? "[...] Lone Dybkjær from Det Radikale Venstre (Social Liberal Party) says the minister is obliged to follow this decision to ask to take the A-item off the agenda. [...]"I am clearly not an expert in Danish constitutional law and, hence, I won't place my judgement here on that question. I am, however, quite sure that in Germany no vote of a Parliamentary Committee could be legally binding for the German Government. We'll have to wait and see; in particular it might be that the Danish Government tomorrow will decide to obstruct the approval of the political agreement as reached in May 2004 even without being legally bound by the vote of the Committee. Anyway, the risk is that if the substantial discussion on that topic is re-opened the EU Council might finally conclude another political agreement coming much closer to the demands of the anti-patent campaigners. The stakes are very high, on both sides. What do the various anti-patent groups mean when talking of "software patents" which should not be allowable throughout Europe? From my knowledge gathered by closely watching those groups on the Internet I am inclined to say that, in the perspective of the anti-patent campaigners, every patent which can theoretically be used to successfully sue someone who is commercially tinkering with software qualifies as a "software patent". I would like to call this approach "Stallman's Utopia": If someone (like Mr. Stallman, the creator of the famous GNU GPL copyright license for F/OSS software) is fighting for a world where no patent is ever granted which is potentially enforceable against anybody commercially tinkering with software, then he or she 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 any kind of such "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" out of 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 equivalencies. In the effect, the enforcement on the right hand side can be directed against some wrongdoing that is not trivially identifiable 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 infringes 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 patentable subject-matter will never include "software as such". With this message the politicians again turn to the anti-patent activists, getting an angry response: "See here, there and there, the claims talk of software, and some 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", then 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 anything like 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 equipped with analogue-to-digital and digital-to-analogue-converters. In the context of "Stallman's Utopia", 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 to ashes this way. And, most of the politicians might perhaps no longer be inclined support the anti-patent campaigners if they could clearly understand these consequences. Implementing Stallman's Utopia throughout Europe would be irresponsible and simpleminded. But it seems as if for the anti-patent lobbyists the time for researching the basic concepts of patent law and adapting their campaigns accordingly has passed by. They are not interested in any of such discussions. They have since long switched over to something like a political "brute force" approach to win the so-called "patent wars" by all means, in particular by endlessly repeating their misrepresentations, as well as by utilising their sheer numbers as a political leverage.
However, amongst patent experts it is commonly agreed that a patent can be enforced against someone commercially tinkering with softwareNope, not at all. Most people I know of who resist software patents do so because they think patentability, introduced to protect inventors of tangible things scale very badly into virtuality. And patent owners are not going only after commercial market participants, but normal people too: See the German Kfz-Kennzeichen Patent desaster. Ridiculus Patents like one click buying, patents on run-length compression (LZW), patents on the concept of subdomains among others do little to strengthen the trust that the patent system in it's current form is able to cope with the requirements that come with a virtual environment.  Post a Comment
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