|ESC 2002/09||Monopolkommission 2002/07/08||DG IV 2002/06/19||DIHK 2002/04/20||CEA-PME 2003/09/16|
In fact in 4.5, when it says:
It misses the recent (barely before the date of the document) news from Microsoft according to which they plan to assert patents against free software compatible with their CIFS specification for sharing files and printers in a network. This is a clear example of their strategic use to keep their monopoly.
It further states (4.3.1) that software innovation exists without the incentive of patents, and therefore software patents are unnecessary and counterproductive.
In this section 5.2, and specially in section 7:
We get the impression the directive proposal has not been fully understood. The directive carefully sets several provisions to avoid any software from not being patentable and forces courts to uphold substantive changes in patent law that have been slipping through currently unenforceable EPO case law. The "technical contribution" requirement is only a dodge, because the directive defines software as being a technical field. Therefore any software contribution is technical and any software is patentable. In fact, when we tried to imagine amendments, we saw that by ammending only few articles, the directive would still apparently allow for any software patents.
Any one of the following provisions alone would probablly suffice to allow for unlimited patentability:
It focuses the problem on trivial patents. This is a huge problem, but not the only one, and we must not let this one hide other problems. Specially because the triviality problem does not have an easy solution. Or how high should the "inventive height" of a software patent be? 3 Lemelson? 10 Lemelson? How do we define the measuring unit "Lemelson"?
One obvious solution to a large part of the problems lies in combining technicity and novelty in a way, as it used to be the case in the EPO examination guidelines of 1978. Clearly an innovation should not be patentable or unpatentable depending of the drafting of the claim wording. We must look beyond words into meaning and ask whether the application teaches new insights into the use of controllable natural forces for a predictable result. It is not enough that the invention is new and it has physical effects. The physical effects must be new, we should not allow patents on new uses of already existing machines such as computers, whatever electrical currents or effects their peripheral devices have on the physical world. If the innovation lies in logics and calculation to achieve effects through a know machine and known peripherals, using natural forces in known ways, the fact that the effects are new is not sufficient, because we get no new insight in technical matters, just a new application of already available knowledge.
This "technical invention" criterion has its rationale in the rule that any new discovery that "only" needs rational thought would appear sonner or later and does not need monopolies on ideas as an incentive, and risks putting any rational being (specially computer users) under infringement, while those inventions that require empirical observation of the physical world are likely to require experimentation, laboratories and infrastructure, maybe would not be possible without important incentives as patents, and can only be infringed by those manufacturing (or commercially using) patented inventions.
Remember that the scarce human ressource in software (and any information, logic or business innovation) does not consist in the ability to conceive ideas that can be patented, but in writing the code (or building the business, etc.) that puts such ideas to work. This is already protected by copyright (at least for software) and other mechanisms and does not benefit from patents. On the contrary, creativity would suffer from the artificial scarcity of ideas that patents create.
Please see the references for better explanations of the vital concept of the technicity criteria to apply. A proper application of this criterion would not completely solve the triviality problem, but it would eliminate the most objectionable patents, whichconstitue about 3% of the number of patents which the EPO grants every year, and it would do so in a reliable and predictable way.
The study is wrong in identifying triviality as the real cause of concern especially for free/opensource software. Even non-trivial software patents, as rare as they may be, are harmful. In fact algorithms can be classified into an abstract and all-encompassing type and a more concrete and trivial type. The alternative to triviality is abstractness, whose patentability is just as undesirable. The study fails to take into account work that has been done by computer scientists on this "problem of abstraction", see
A more basic concern about software patents is in their epistemological nature. This is well addressed by the technicity criterion but not by the non-obviousness criterion.
Patents are monopolies in the use of some machine in exchange for publication of information on that machine. When the machine becomes software, and therefore machine=information patents collapse into "monopolies in the use of some information in exchange for publication of information". So we are allowing people to monopolise information in exchange for publishing information that cannot be used because is monopolised. The fact that publication equals manufacturing in software (and other logical creations) makes patenting software (and all other logical achievements) absurd.
The basic difference that distingueshes software from other fields is that it is information. The study fails to see that, because this line does not only separate software from mechanical engineering, but also excludes other logical achievements from patentability (like VHDL hardware (that is designed by feeding logic programs to a machine that builds the hardware), business methods, social interactions, etc.).
The study keeps reiterating that no criteria can distinguish desirable from undesirable software patents, although such criteria exist and have been successfully used for decades. A technical invention is a teaching of cause-effect relations in the use of controllable physical forces. This allows for patents on real computer-implemented inventions, such as for example a chemical engineering process that needs certain changes in pressure and temperature controlled by a computer, when there was not previously know 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 consepts (respecting copyright if any) for other purposes (like a virtual simulation of the process), but they 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 program when the application is properly drafted.
The study has apparently not understood this delimiting criterion for patentability and therefore infers unlimited patentability from a difficulty in defining software.
The basic underlying problem of this study may be that it stops short of asking the responsible governmental institutions to confess that they have committed serious errors. In the USA in 1994, the most well-respected software business pioneers called upon the government to recognize its errors and declare previous decisions of various administrative and judicial organs as illegal. In Europe, the errors are even more evident than in the US. The European Patent Organisation and the european governments who are sitting on its board of directors have acted against the letter and spirit of the law and against the interests of the innovators and the public at large. Face-saving and problem-solving are in conflict. In this context it may be difficult for studies in general and specially those commissioned by state institutions not to opt for some degree of face-saving.
In practice however, a novel invention is rarely denied a patent, unless it is completely obvious to "a person skilled in the art". To be sure, this is by no means unique to software or business method patents. Unfortunately, courts may not be able to raise this standard, as it is firmly rooted in the tradition of the patent system. A major departure from current practice in this respect would be beyond the authority of the courts. The "patent inflation" caused by granting "trivial" patents on a routine basis in our view calls for a fundamental debate, and eventually legislative action.