Software Patents: Questions, Analyses, Proposals

1. In how many % of the app. 30000 software patents granted so far by the EPO is the claimed achievement is so impressive, that it seems at least worth discussing whether we as legislators might want to grant a temporary monopoly for such an achievement? (Please cite the main claims of a few typical EPO software patents to illustrate your statement!)
   What do the EPO software patents usually claim, what effort does the development of the claimed idea take and how much later (earlier?) would it spread and sprout if we didn't reward its publication with a patent?
2. Is the software industry's innovativity suffering from too rapid imitation?
   Does software copyright need to be improved or supplemented by patent law or similar?
   What would an optimal "specially-tailored software rewarding law" (lex sui generis) look like?
3. Why is there a phenomenon of Free Software but not free hardware?
   How does the economics of immaterial goods differ from that of material goods?
   Which role could/should Free Software play in the information society?
   Under which rules can proprietary and free software prosper together productively?
4. According to which rules do European courts (EPO Technical Board of Appeal, German Federal Court and Federal Patent Court) judge the patentability of software?
   Art these rules clear?
   Where have they been formulated in the clearest terms?
5. According to which rules did European courts judge the patentability of software in 1985?
   Were these rules clear?
   Where have they been formulated in the clearest terms?
6. Are there any international treaties or other legal constraints that limit our legislative options concerning software patents, either by requiring software patentability or by limiting it or linking it to unalterable conditions?
7. Which clear delimiting rules of patentability or patent enforcability are there for us to choose from today?
   How many % of the total number of EPO patents (hard and software) would be confirmed as valid and enforcable, if each of these rules was applied?
   What do you think of the following possible options?

   Scope of patentable ideas:

   "practical and repeatable problem solutions":

   All kinds of ideas can be patented, provided that they are repeatable independently of participating persons and achieve a determined effect in the material world. Purely mathematical solutions are acceptable, but the claims must be tied to practical applications, potentially leading to very long lists of claims. This doctrine is favored by leading theoreticians of both the USPTO and the EPO.

   The Technical Field = Applied Natural Science:

   The "technical field" is the field of engineering aka applied natural science. An invention must teach a new way of using natural forces to directly achieve a tangible result. "Computational or organisational rules" designed to solve problems posed by mathematical models (such as the Turing machine) are not technical in this sense, no matter whether the model in question can be mapped onto a physical structure or not. This doctrine was developped mainly by German lawcourts up to the 80s, and it can be found in law commentaries, examination guidelines and court decisions up to the year 2000. The Eurolinux Alliance demands that this doctrine be systematically applied in the future.

   Abstractions in their Original Form:

   This doctrine allows even the patenting of purely abstract mathematical methods without a practical application. The question of patentability is no longer asked. The discussion is shifted to enforcability: what kind of objects can constitute a patent infringement?

   "Dynamic Concept of Technical Character":

   "Apply all three doctrines in an case-by-case approach, drift toward unlimited patentability in helical movements. For the sake of "legal security" (= prevention of resistance from "conservative" lawcourts), confirm this course from time to time by fuzzy laws and directives." Some unfriendly commentators claim that this is what interested patent lawyers mean when they praise the advantages of a "dynamic concept of technical character".

   Scope of Infringement Activities:

   Information goods are recognised as part of public communication process. They may not be touched by patents, no matter what is written in the patent claim and no matter whether they are technical or not. Only industrially produced material goods (marginal production cost > 0) can infringe on patents. Not only the private sphere but also the sphere of public communication, including direct application of information goods on an ordinary computer, is off-limits to patent litigation. The question on whether claims to abstract-logical constructions should be permissible or not is kept separate from this issue. Any combination with one of the above doctrines is possible.

   Difficulty of Invention:

   Some peole are looking for criteria and game rules that would make it possible to eliminate trivial patents. E.g. the Dutch parliament has requested that this problem must be solved, before the patentability of software can be discussed.

   Organisation of the Patent System:

   For decades it has often been criticised that the patent examination system is not up to its task of quickly and efficiently sorting out unjustified patent claims, and that patent institutions have developped an expansive tendency that leads to more and more questionable patents. The French deputy Jean Le Déaux has demanded that a commission be appointed with investigating the abuses in the European patent institutions and working out recommendations for an institutional reform. According to this view, the key to improvement is not so much in the legal rules or patenting as in the institutional framework in which thes rules are applied.

8. Assuming these rules were codified as European Directives, what would happen to those patents that could no longer be confirmed as valid?

So far computer programs and other rules of organisation and calculation are not patentable inventions according to European law. This doesn't mean that a patentable manufacturing process may not be controlled by software. However the European Patent Office and some national courts have gradually blurred the formerly sharp boundary between material and immaterial innovation, thus risking to break the whole system and plunge it into a quagmire of arbitrariness, legal insecurity and dysfunctionality. This article offers an introduction and an overview of relevant research literature.

We propose that the legislator draft any regulations on the question of software patentability along the lines of the following short and clear text.

European patent authorities often cite the TRIPs treaty as a reason for making computer programs and business methods patentable and for making such patents enforcable in the most indecent ways. This reasoning is fallacious and easy to refute. It appears moreover that the European patent establishment itself is systematically violating the TRIPs treaty.

Die meisten Softwarepatente sind trivial und breit. Die Ursachen hierfür ist im Patentsystem selbst und nicht etwa in Unzulänglichkeiten bei der Patentprüfung zu suchen. Einerseits lässt das Erfordernis der Erfindungshöhe (Nichtnaheliegen) schwer fassen, und bisherige Versuche einer Formalisierung dieses Erfordernisses haben lediglich zu seiner tendenziellen Abschaffung beigetragen. Andererseits haben die Gerichte mit der Einführung von Softwarepatenten den Marsch in die totale Trivialität freigegeben, indem sie das einzige verbleibende Bollwerk niederrissen: das Erfordernis der Technizität.

In a letter to the members of the European Parliament advocate Juergen Siepmann disproves attempts of some parlamentary "intellectual property experts" and industrial patent lawyers to badmouth copyright. He opposes their writings with german UrhG (copyright law), law commentaries and court decisions. The text is useable as introduction into the basics of software copyright.

What are the central freedom and exclusivity interests of software creators and users how do they translate into the language of the Software Patent Directive? What other interests exist? Where can space for meaningful negotiations be found?

In order to test a law proposal, we try it out on a set of sample innovations. Each innovation is described in terms of prior art, a technical contribution (invention) and a small set of claims. Assuming that the descriptions are correct, we then test our proposed legislation on them. The focus is on clarity and adequacy: does the proposed rule lead to a predictable verdict? Which of the claims, if any, will be accepted? Is this result what we want? We try out different law proposals for the same test series and see which scores best. Software professionals believe that you should "first fix the bugs, then release the code". Test suites are a common way of achieving this. Pursuant to Art 27 TRIPS, legislation belongs to a "field of technology" called "social engineering", doesn't it? Technology or not, it is time to approach legislation with the same methodological rigor that is applicable wherever bad design decisions can significantly affect people's lives.

The limits of what is patentable which were laid down in the European Patent Convention of 1973 have been eroded over the years. Influential patent courts have interpreted Art 52 in a way that renders it obscure and meaningless. Not all courts have followed this interpretation, and numerous law scholars have shown why it is not permissible. The EPO had accepted the inconsistencies in anticipation of an expected change of law. However this expectation was frustrated in 2000 by the governments and in 2003 by the European Parliament. The Parliament voted for a clarification which gives Art 52 back its meaning. Meanwhile, proponents from all sides have proposed to modify Art 52(3) EPC in one or the other way, of course while claiming that this merely serves to "clarify the status quo" or to implement a directive which serves this purpose, and, since the European Commission and the Council have not signalled support for the Parliament's approach, there is still no common understanding of which "status quo" we are talking about.

Building a patent portfolio is hardly a realistic option for the self-defense of the free/opensource software community. However this community has a certain chance of leveraging prior art to its advantage, especially if it does this in a cost-efficient manner and realises the potential of legal insecurity inherent in the software patent system. So called Defensive Publishing, as has been proposed by initiatives like the Foresight Institute, however appears to be an incredibly silly approach. The most urgent task at this moment (spring 2001) is to time-stamp every CVS archive and every mailing list on which software ideas are developped.

Some requirements for a study on economic effects of software patentability. Includes questionnaires which may used to find out what the European software industry and consumers may stand to gain or lose from software patents.

Europe is preparing major changes in its patent system. The European Patent Office (EPO) has proposed to remove limitations on patentability, such as the exclusion of computer programs in Art. 52 of the European Patent Convention (EPC). A report by the French Academy of Technologies supports this proposal but suggests additional regulation measures in order to reduce potential abuses of software patents. In this article, we try to assess the costs of such compensatory regulation. They add up to an estimated 1-5 billion EUR per year for the European Union. Various regulation approaches and cheaper legislative approaches are compared in this article.

A computer program is a linguistic work and a virtual machine at the same time. Neither copyright nor patent law were designed with computer programs in mind. Some scholars and politicians have therefore argued for a "Third Paradigm between patent and copyright law", also called specially tailored right or ius sui generis. Others have called abstract-logical ideas a "nobody's land of intellectual property" and demanded that it should be kept free of all property claims. Beside the granting of exclusion rights, there are other ways in which information innovation can be stimulated and rewarded.

During the last 200 years, the patent system has continually expanded. This expansion is not so much the result of conscious economic policy but rather to some automatic dynamics of political organisations, similar to monetary inflation or to the arms race. This article identifies several causes of patent inflation, traces their evolution and tries to look into the future.

As patents are increasingly being granted for methods of organisation and calculation (which may be described in terms of computer machinery but are nonetheless nothing but abstract principles), it becomes very difficult for tax inspectors to assess whether a patent is actually being used or not. Thus patents can be used to almost arbitrarily increase or decrease company assets and to create revenue streams from one corporate entity to another, preferably between affiliated companies or (overt or hidden) partner companies. In some countries, such as Ireland, patent license revenues are even exempt from taxation. In others, such as France, reduced tax rates apply. These possibilities are increasingly being used. They may also be coming into the reach of ordinary people who, by networking in a smart way, can shelter their money in safe distance from tax inspectors. Maybe we can put together a consulting work group that will help people realise this potential.

Overview of current research on the persons working on creation of software independently or in companies of various sizes; their business models, interests, productivity, earnings, taxes, etc.

The German Patent Office is handing out patents on computer-implementable rules of organisation and calculation (programs for computers), although the written law, when understood either literally or by the only valid systematic interpretation, clearly disallows this. This illegal caselaw has been made possible by a series of decisions of the German Federal Court (BGH), which ovrerruled the Federal Patent Court (BPatG) in order to void the written law and replace it by new rules, which effectively remove all limits to patentability and all freedoms of programming. To reverse these court decisions, we need to ask clarification from the legislator and at the same time appeal to constitutional courts. Anonymous law experts give good advice.

The discussion on software patents in various forums on the Net keeps revolving around the same questions and errors. A systematic collection of answers is necessary.

Die Bundesbahn verkauft das "Produkt" Supersparpreis, die Telekom das "Produkt" GermanCall. Manche Informatiker ziehen das "Software-Engineering" dem Programmieren vor. Tonträgerverkäufer nennen sich "Musikindustrie". Ein Lehrerstreik heißt "industrial action". Schon seit einigen Jahren gibt es Bestrebungen, prestigeträchtige Begriffe wie "Industrie", "Technik", "Produkt", "Engineering" etc so auszuweiten, dass möglichst auch immaterielle Aspekte des Lebens zu geldträchtigen materiellen Waren geformt werden können. In ihrem Kampf um Patente auf Gensequenzen und Rechenregeln zeigen die Patentanwälte sprachlichen Innovationsgeist. In den letzten Jahren entstanden in kurzer Folge Neologismen wie "Computerprogramm nicht als solches sondern mit technischem Effekt", "programmtechnische Vorrichtung", "Computerprorgammprodukt", "Algorithmus mit physischen Bezugspunkten", "computer-implementierte Erfindung". Mit unklaren bis zu widersinnigen Begriffen beruhigen "Experten" die Gewissen verunsicherter Gesetzgeber. Insbesondere der Begriff "computer-implementierte Erfindung" hat seit seiner Einführung am Europäischen Patentamt im Mai 2000 seinen Weg in den amtlichen Sprachgebrauch und die politische Diskussion weit über die Kreise der Patentämter hinaus gebahnt. Er wurde verwendet, um das Europäische Parlament zu einer unehrenhaften Entscheidung zu verführen. Das Parlament widerstand jedoch den Irreführungen und Drohungen und stimmte für einschneidende Änderungsanträge, u.a. eine Umdefinition des Begriffs, die ihm die Zähne zieht. Die Irreführungen gehen jedoch auf Ebene des EU-Ministerrates weiter.

The patent system has created its own powerful quasi-religious movement, which is promoting and expanding it. The movement's members are united by a common faith in the beneficiality of "intellectual property", and equipped with rule-setting power in all important large organisations, including patent offices, patent courts, governments and large companies. Usually, CEOs and leading politicians don't have any opinion about patents and, when asked, are afraid of exposing their lack of expertise. Therefore they ask their patent department to speak on behalf of them, not noticing that the patent movement is pursuing its own agenda, which has very little in common with business or government interests.

Software patents seen from perspectives of trade unions, consumer organisations etc, provide possible models of argumentation for each.