Posted on 05/25/2006 7:58:13 AM PDT by ShadowAce
The European Patent Office will be bound by proposed legislation that will exclude software from patentability, according to the EC, in a move that has startled opponents of software patents
Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.
The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."
This statement appears to contradict what the EC said last year — that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive.
The Foundation for a Free Information Infrastructure (FFII), which has doggedly campaigned against software patents in Europe, was confused at the EC's change of tune.
"I'm stunned," said Pieter Hintjens, the president of the FFII on Wednesday. "Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"
In the past, software patent campaigners have expressed concerns that the Community Patent legislation would be used by the EC to legalise software patents.
The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.
"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.
"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.
"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.
Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.
Interesting. Does that mean they will flood the US Patent office with software patents?
The Europeans have no concept of "intellectual property" because they have no intelligence.
My guess is that they are leaning to "Copyright" as you suggest.
I'd rather it be subject to patent than copyright. At least there's a time limit to patents.
Therre are time limits to copyrights as well, just longer. The big problem here is that a copyright violation will not carry near the weight as a patent violation.
I believe this is an extreme solution to a small problem. Some have patented silly things like a hyperlink.
Instead of issuing a patent where a patent is deserved, they will just throw the baby out with the bath water.
People are abusing patents to register obscure things that can be done in software. And when/if anyone actually implements something similiar to that persons idea then they sue.
So much longer in fact, that the concept of a "limited time" has been lost. In addition, whenever a big disney property gets near the expiration of its copyright, they just lobby congress to extend the time for another 70 years or so. The special protections given Hollywood in this regard are outrageous.
I disagree.
The problem with software patents is that too many trivial things get patented and we end up with endless lawsuits or threats of lawsuits with the net result that compromises are made in software development to avoid these problems. I think it is well established that the big guys (IBM, Microsoft, Apple etc.) basically work around this with a gentleman's agreement that "I won't sue you if you don't sue me". What a system.
Do you think a 1 click system for buying something on Amazon.com should be patentable. I'm pretty sure it is and maybe not by Amazon. I think that is just silly.
Yes, effectively the software is obsolete in only a few years anyway. Probably even before a patent expires.
That deal didn't sit well with me either. It's a crock that Disney gets special consideration. Kind of like their IP sits in a congressional office and lives outside the law.
Interesting.
The copyright versus patent argument is a red herring as well, as the same argument can be applied to many eminently patentable inventions. For example, one can get a patent on an abstract chemical process and one receives a copyright on the physical implementation of that process, the extent conditions being used to suggest that software should never be patented. Yet no one is suggesting that chemical processes should be non-patentable material.
While it is true most software patents are frivolous and trivial, the same is true of most hardware patents as well. It really would help if frivolous patents were not so readily granted. On the other hand, I see no reason why genuinely clever algorithm invention (e.g. RSA) cannot be patented.
It wasn't patentable here until the 90s when our courts forced the USPTO to start granting software patents. It was really a slippery slope that started with software to control a patentable mechanical process and slipped into patenting any software.
Does that mean it is copyrighted instead?
Software was always covered under copyright. It now enjoys an unprecedented dual protection in the US.
Or do the Euros think that it it not intellectual property at all?
They're pretty strict on IP. Germany, for example, has a whole federal court dedicated to IP claims, staffed with judges who are experienced in IP issues. This is a better system than how with us any judge who doesn't know a computer from a refrigerator can sit on these cases.
Just because I said i would prefer that it be subject to patent, doesn't mean I think all software would patentable. The requirements that it be novel and not anticipated by prior art would still apply and I believe the "1 click" satisfys neither test. Also, copyright infringement cases are much cheaper to prosecute and defend than patent infringment cases are, by a long shot.
Yes. In fact, the whole concept of FLOSS (Free, Libre, Open Source Software) relies on copyright, rather than patent, law.
The GPL is a license that expands users' rights rather than restricts them, since normal copyright law does not allow for redistribution of the copyrighted works. The GPL explicitly grants that right from the copyright holder.
I agree it is silly, but it doesn't mean all software patents are silly. I think the intermittent wiper is a silly patent, but the guy got rich off it after he sued Ford and other companies. Ford thought this certaintly isn't a patentable item, but the courts said otherwise.
Sure the software industry has been hit by more absurdity of late as they are growing market so it's expected.
This is a bullshit argument though. There are many other patentable subjects where the abstract theoretical design is patentable and any implementation is subject to copyright. Chemical processes are an easy example of this.
Copyright is not a feature unique to software patents. One can make this argument, but then a consistent treatment would require some serious slash-and-burn on other non-software engineering inventions.
Well said.
I find the OSS fans target software patents unfairly as their ultimate goal is to make all software OSS. And if they can't win the marketplace they'll use gov'ts to make it happen.
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