based on a draft by Xavier Drudis Ferran from CALIU.org
On the Comission's consultation too much credit is given to a biased study of the replies. In saying
However, the responses received were dominated by supporters of open-source software, who believe that there should be no patents for software at all or no patents for software running on general purpose computers.
McCarthy repeats the mistake of the study in assigning all opposition to software patents to free software advocates. Much opposition comes from non free software companies, and it is reflected in the replies to the consultation.
The section titled "current state of the law" might be better titled "current EPO practice". The European Patent Office no longer follows the law (the European Patent Convention) which clearly excludes programs for computers and other immaterial innovation from patentability. It used to follow it, as reflected in its 1978 guidelines, but, starting around 1986, it gradually changed its practice and its guidelines without a change in law that would justify it. The EPO interprets the "as such" appositive in EPC as a means to grant patents on "technical realisations" of any kind of non-invention (including mathematical methods, business methods and computer programs), and grants or rejects patents based on claim wording instead of substance. There are guides around on how to obtain European patents for any software. The EPC would clearly not have included an exclusion for "software as such" if it meant that "software with a technical effect is not software as such", as the EPO postulates. Thus, the EPO's interpretation of the EPC is tantamount to ignoring the EPC.
The correct interpretation of the as such clause would be that no software is patentable, but using software in an invention that is otherwise patentable does not render that invention unpatentable. The innovation must lie in the realm of applied natural science (i.e. "technology" in the sense of patent law). It is not enough to use forces of nature (technical means) for a routine implentation of an innovation that lies in the field of logic. For example a chemical engineering process that needs certain changes in pressure and temperature controlled by a computer, when it was not previously known that those changes obtained the desired effects. The fact that a program controls the process does not mean that the process is not patentable. We would not be patenting software as such, but a technical invention that happens to use a program. Everybody would be free to use the same program concepts (respecting copyright if any) for other purposes (like a virtual simulation of the process), but people would infringe when performing the chemical process with real machinery and substances. This is the useful meaning of the clause "as such" in EPC art 52: you cannot patent software as such, but can patent inventions that include software when the innovation is not in information but in the material world. Thus, a program alone, on a carrier, in transmission, working on a conventional computer, or otherwise, would not infringe. It is not enough to take a conventional computer, argue that it uses electrical currents or known devices in known ways and pretend that that allows patenting any new programming idea when the application is properly drafted.
There is a piece that is very difficult to understand for a software developper:
To give an example, a program which, when run, makes for more efficient memory usage and so enables a computer to run faster may be claimed in the context of a patent covering the process because of the technical effect it has on the operation of the computer. In contrast, a new computer game would not be patentable at present because it has no technical effect (it would, however, be protected by copyright).
More efficient memory usage, or a faster sorting algorithm or any other such achievement are logical rules of organization of elements of the universal computer. The merit of any computing idea can be expressed in terms of using ressources more efficiently. If this was an argument for patentability, perhaps even the codecision procedure of the European Parliament should have been patented, because it leads to better, less resource-consuming and faster results than some alternatives (for instance random picking of proposals until unanimity is reached for some, or an assambleary system where all of Europe's population meets together every monday). Also, new computer games rules have traditionally been designed in view of optimal managment of information, so they could store more information in memory and achieve greater responsiveness, and it has happened often that a computer game succeded just because it used memory in a more efficient way and therbey improved user experience (including more detailed and/or faster graphics or sound). Saying that a memory optimisation is patentable and computer games are not sounds contradictory to a programmer.
BPatG 2002-03-26: Suche fehlerhafter Zeichenketten- In this recent decision, the german Federal Patent Court has rejected a software patent and explained that the argument of "improving memory usage" does not hold water because it would apply to all software and therefore is not compatible with the legislator's intention of excluding software from patentability, as expressed in Art 52 EPC.
McCarthy's concept of "algorithm" is also confusing:
However, a computer program which is designed to obtain the technical effect of the patented invention and which uses the technical features claimed in the patent could indeed fall within the scope of a valid claim.[...] Furthermore, a patent claim to an invention based on a particular algorithm would not extend to other applications of that algorithm.
How do these sentences hold together? If the claims cover just the algorithm (by drafting the wording with references to abstract computation resources in hardware jargon, to pass the EPO's "technical effect" test), then surely any attempt to apply the algortihm to another problem would infringe. The case presented would only happen with deficiently drafted applications, that choose not to cover as much as they could be granted. Maybe the misunderstanding is not seeing that software is exclusively algorithms. There's nothing more. Algorithms applied to a particular class of computer hardware.
Even if the EPO pratice is considered compatible with TRIPs, that is not a reason to endorse it. The techinicity criterion in old EPO practice and current EPC is TRIPs-compatible too, as the Bakels study (and others) explain.
The document fails to note the traditional distiction between copyright and patents. They were not meant to overlap. Certainly you can devise a system like in the US where software can get both patents and copyright, but then software would be the only work covered by both forms of property, and patents being a stronger property would erode the protection offered by copyright. The Bakels study recognizes implicitly the potential for those damages (SMEs prefering copyright and being threatened by patents that they could inadvertedly infringe and then being unable to exploit their copyrighted original work).
A vociferous section of public opinion believes that there should be no patentability of software at all. In order to be able to give proper consideration to this argument, we will need to have full information about what effects the proposed directive might have on open-source software and on the creativity and vitality of the industry. It seems to many that the opponents of software patents have not been able to show that software with a technical effect should cease to be patentable. The arguments against patenting software which satisfies the tests of the EPC could well be levied at patenting in general. All patents grant a limited monopoly as a reward for invention.
It seems that Ms McCarthy has not taken a look at any examples of EPO-granted patents for "software with a technical effect". The proponents of software patents have not even tried to show that any of these patents, or in fact any of the software patents granted by the EPO, could be helpful in promoting innovation or achieving any other public-policy goal. In fact they have not pointed to any patents which are both broad enough to be useful to the patentee and narrow enough to be acceptable to the general ethics of programmers.
There is no "software which satisfies the tests of the EPC", because according to the EPC computer programs are not inventions.
There is however "software which satisfies the tests of the EPO". These tests are a joke. The EPO's distinction between "software as such" and "software with a technical effect" is semantic and grammatical nonsense which can be understood best by means of satire.
see Moses, the Ten Exclusions from Patentability and "stealing with a further ethical effect"
If the EPO ceased to violate the EPC, the number of patents granted would be reduced by about 3%, as we have shown.
These 3% of the EPO's patents show many distinctive features, against which most of the critical arguments are specifically directed.
see Patent Jurisprudence on a Slippery Slope -- the price for dismantling the concept of technical invention
Even if the argument was in fact "levied against patenting in general" and not only against 3% of the patents, that would not make it less valid. Patenting in general must always be justified anew. In a liberal polity and economy, the burden of proof is on those who advocate restrictions on freedom. Restrictions that were legitimate yesterday may be illegitmate today.
What McCarthy calls a "vociferous group" is a large majority of concerned software creators and the public at large. If McCarthy feels that this group is wrong and the software patentability proponents are right, a certain burden of proof falls on her shoulders. McCarthy should explain how software patentability will improve overall productivity during the next 20 or 50 years. Arguments about the current "status quo" of patentability caselaw, however valid they may be, are as much beside the point as would be argumentations about the "status quo" of economic policy. Unemployment does not become better by the fact that it is resulting from a certain "status quo" of malpractise in state agencies designed to reduce unemployment. If a change of this malpractise affects the vested interest of a certain group, then that is tough luck.
Moreover, open-source software has flourished alongside the existing patenting regime in recent years. Again, under the present patenting regime many firms have invested billions of euros in R&D investments founded on, among other things, the availability of patents. It is argued that it would be very unwise to jeopardise this investment by reducing patentability of software.
Many firms have, until very recently, trusted the law which states that software innovations are not patentable, and based their investments on this trust. Even big companies such as SAP were until 1997 of the opinion that software is not patentable and did not unfold any patenting activities. The big hardware companies whose patent lawyers have been pushing for software patentability at the EPO are not necessarily the leaders of innovation in software. They certainly did invest a lot in illegal EPO patents which they now would like to legalise, but such investments do not legitimate any posession claims. By acknowledging the "posessions" of these companies, McCarthy is proposing to take away the same posessions from developpers and citizens, to destroy the copyrighted property and their rights to fair access and competition on the market place, which have formed the basis upon which perhaps even more "billions of euros in R&D" were invested.
The European Parliament is taking a decision to create an appropriate order framework for the next 20-50 years, not a decision about how to maintain the "status quo" and defend some group's posessions. What is important is which kind of posession will be more productive for society as a whole.
McCarthy's "status quo" logic should ring a warning to the European Parliament: be careful not to sanction any protectionist claims, because once you have sanctioned them, it will be very difficult to get rid of them. Even when the protectionist claims have been sanctioned only by blatantly illegal patent office decisions, politicians like McCarthy will be very sensitive to the interests of incumbent protectionists and insensitive to the public's freedom interests. This is because protectionist interests are concentrated and organised, while freedom interests are dispersed. While the protectionist lobby will be identified with "the industry", the freedom lobby will tend to be disqualified as a "vociferous group", ideological movement etc, even when it enjoys strong support among the concerned professionals and businesses.
On the other hand, patents impose indirect regulatory and other costs and there is always a trade off between freedom and intellectual property. These considerations would suggest that the burden of proof is very much with the minority of persons who wish to extend the boundary of what is patentable (e.g. in the direction of patentability of business methods).
The burden of proof is on those who advocate a restriction of freedom. This group is in fact a minority, and it is proposing to change the law. But even if this was not so, the burden of proof would still on their shoulders. Freedom is a basic constitutional principle of European polity and economy.
There is no special controversy about "business methods". Business methods have, just like other software ideas, regularly been granted patent protection by the EPO against the letter and spirit of the written law, and the Directive proposal would legalise that practise. Within the patent law community there may be a minority of people who propose a whole-hearted commitment to business method patents, while the majority prefers to keep quiet or to engage in a virtual debate about business methods while silently continuing to patent all kinds of logics, including business methods. This type of debating manoevre is called "shift of focus" in rhetorics. By conducting exorcist rituals against an undefined concept called "business methods", the software patent lobby is trying to create the impression that it has the adverse effects of software patents under control and is able to confine them to some US-specific quarantene area which european politicians needn't worry about.
For your rapporteur, what is important above all is legal certainty. The European Patent Convention is now over 20 years old and the consultations held by the European Commission indicate that legal certainty needs improving. Otherwise some will incur the costs of submitting patent applications with little chance of success, while there is evidence that additional complexity is helping to deter others, particularly SMEs, from seeking patents at all, which means they may be missing financially advantageous opportunities. Uncertainty tends to drive up costs at every part of the patenting system, making infringement harder to predict and disputes more likely. In addition the complexity of intellectual property rules may act as a barrier to entry to the market.
When you advocate a bad regulation, one last justification is that it creates "legal certainty". A bad but predictable regulation may in fact sometimes better than none at all, just as dictatorial rule may sometimes be deemed better than anarchy.
However the proposed directive, while sanctioning EPO supremacy in patent matters, would add complexity and diminish overall legal certainty.
While the limits of patentability would become more uncertain than ever as some lawcourts demand a "technical contribution" while others look at the technicity of the "invention as a whole", there would no longer be any secure legal grounds for revoking the 30000 illegal software and business method patents granted by the EPO. From the patent owner perspective, which McCarthy seems to prefer, this may look like "increased legal security".
In a way, legal uncertainty has always been an integral part of the patent system. The patent system is necessarily based on fuzzy concepts such as "novelty" and "inventive step". When patent inflation runs out of control, legal uncertainty is increased. This drives up the cost risks associated with prosecuting patents and thus weakens each patent. Legal security is best served by insisting on high standards of patentability.
see also
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