Software patent

Software patents and patents on computer-implemented inventions are a class of patents and one of many legal aspects of computing. There is intense debate as to what extent such patents should be granted, see Software patent debate. Free On-line Dictionary of Computing provides a general definition of a "software patent" as "a patent intended to prevent others from using some programming technique", while the European Patent Office (EPO) provides a general definition of a "computer-implemented invention": "an expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie the novelty (patent) features of the claimed invention are realised by means of a program or programs" [http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm]. == Software patents vs copyright == Software patents are sometimes confused with software copyright. Under international agreements, such as the World Trade Organization's TRIPs Agreement, any software written is automatically covered by copyright. This regulates the direct copying of the program code. Applying for, and being granted a patent gives stronger rights. It covers the programming method itself, independently of any implementation in code. Thus usually reimplementing a program will avoid copyright infringement, but not patent infringement. Like all patents, software patents are enforceable regardless of whether the competitors were aware of the patent (patents are kept secret for at least 18 months) and the software was completely independently developed. A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringement, including triple damages in the United States if the infringement is considered deliberate, which means knowing of the patent but not licensing it (even under the assumption it was invalid). As laid out in TRIPS, patents are required to last 20 years after filing, provided the renewal (patent) are paid. == History == The first software patent ever granted is probably a patent for a "computer having slow and quick access storage, when programmed to solve a linear programming problem by an iterative algorithm, the iterative algorithm being such that (...)" applied for in 1962 by BP ([http://www.cippm.org.uk/pdfs/JILT%20kretschmer%2011_03.pdf], see end of page 3). The patent relates to solving simultaneous linear equations. The United States Patent and Trademark Office has traditionally not considered software to be patentable because by statute patents can only be granted to "processes, machines, articles of manufacture, and compositions of matter". In particular patents cannot be granted to "scientific truths" or "mathematical expressions" of them. This means that most of the fundamental techniques of software engineering have never been patented. In 1982 the US created a new court (the United States Court of Appeals for the Federal Circuit) to hear patent cases. The court made patents generally easier to uphold by presuming patents were valid unless proved invalid and weakening the defence of nonobviousness. By the early 1990s the patentability of software was well established, and in 1996 the USPTO issued [http://www.bitlaw.com/source/soft_pats/final.html Final Computer Related Examination Guidelines]. See Software patents under U.S. patent law. In Europe, the EPO (and other national patent offices) has been issuing many software patents since the 1980s, although or since Article 52 of the European Patent Convention excludes "programs for computers" (Art. 52(2)) but only when claimed "as such" (Art. 52(3)). See Software patents under the European Patent Convention. In India, a clause to include software patents was quashed by the Indian Parliament in April 2005. The recent expansion of the internet and e-commerce has led to many patents being applied for and being granted for related software and business methods. There have been several successful enforcement trials in the USA. == Law == === Jurisdictions === Substantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions. The national jurisdictions relating to software patents in Europe and in the European Union are not harmonized even though some harmonization has been brought into the national jurisdictions in the 1970s and 1980s. Interpretation of the substantive law varies to some extent from state to state. In 2002, in order to harmonize the national laws a step further, the EU Commission proposed a Directive on the patentability of computer-implemented inventions, but settling the exact terms of the Directive has proved highly controversial. In 2003, the European Parliament deeply amended the original draft from the Commission, but subsequently in 2005 the Council of the European Union (i.e. national government ministers) mostly reinstated the original text. Software patents under multilateralism treaty: * Software patents under TRIPs Agreement * Software patents under the Patent Cooperation Treaty * Software patents under the European Patent Convention Software patents under national laws: * Software patents under US patent law * Software patents under UK patent law * Software patents under German patent law === Scope of software patentability === As noted above both the EU and the US have traditionally restricted the ability to patent software. This has led to several proposals for some very narrow definitions of what software actually is. For example: * A piece of code not relating to "the use of controllable forces of nature to achieve predictable results". * A piece of code relating solely to the "processing, handling and presentation of information" * A piece of code with no "technical effect" (depending in turn on how one chooses to define "technical") * A piece of code as an abstract listing, not actually running on a programmable device * A piece of code with merely literary merit, rather than any identifiable functional benefits A further difficulty in drawing a clear boundary between software patents and other patents may come from the fact that a claim (patent) can be written so as to embrace many different implementations (some using purely mechanical or electrical means, others using software), for instance by using functional features under certain jurisdictions (for example, "means for controlling"). The expression "computer-implementable inventions" has been coined to refer to this reality. Additionally, under the so-called doctrine of equivalents and its analogues, a patent that on its face does not appear to require software can be infringed in certain circumstances if software is used as an equivalent of (that is, to substitute for) a non-software element, making even more difficult to draw the boundary. === Computer-implemented invention === The term "computer-implemented invention" was put forward by the European Commission, based on an expression used by the European Patent Office [http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm], and proposed as "any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having one or more ''prima facie'' novelty (patent) features which are realised wholly or partly by means of a computer or computer programs." [http://europa.eu.int/comm/internal_market/en/indprop/comp/com02-92en.pdf] The term has been criticized as a politically motived obfuscation manoeuver [http://elis.ugent.be/~jmaebe/swpat/cii.html]. The German chancellor Schr�der is quoted with "the manuscript is titled with 'software patents' - wait, I may no longer say that - well the 'protection of computer-implemented inventions'" [http://www.heise.de/tp/r4/artikel/17/17825/1.html]. The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning. === Litigation === Several successful litigations show that software patents are enforceable in the USA. For example, Eolas was awarded $565 million from Microsoft. See List of software patents for more examples. So far there does not appear to have been any case before a European Court where infringement of a software patent has been proved and damages have been awarded. However, there have been a few court cases where the validity or not of a patent involving software has been the question, where in some European countries a national court has ruled either that a particular patent is valid (eg Germany); or that other patents involving software could be (eg UK). See Software patents under the European Patent Convention for details. == Practical effects of software patents == Patenting software has become popular. This is difficult to quantify but as an indication as at January 2005 Microsoft alone has 6,130 ''issued'' patents which are presumably mainly software patents (US PTO Search). Microsoft expects to file 3,000 new applications this year. IBM received 3,415 patents in 2003 but many of these do not relate to software. Most large software companies have cross-licencing agreements in which each agrees not to sue the other over patent infringements. For example, Microsoft has agreements with IBM, Sun Microsystems, SAP Aktiengesellschaft, Hewlett-Packard, Siemens AG, Cisco and recently Autodesk ([http://www.arn.idg.com.au/index.php?taxid=620938001&id=63439861 IDG News Service]). Interestingly Microsoft agreed to share with Sun even though they are a direct competitor and with AutoDesk even though they have far fewer patents than Microsoft. It appears that large companies would prefer to avoid expensive and uncertain litigation rather than assert their own intellectual property rights. Indeed, being able to negotiate such agreements is a major reason that companies file "defensive" patents. Some large companies have started to enforce patent rights. For example, in the early 1990s IBM started an aggressive licencing program which generated over $2 billion a few years later ([http://www.msnbc.msn.com/id/5578247/site/newsweek/ Newsweek Article]). Licences are often charged as a cost per unit sold or at a few percent of gross sales (not profit), and this license "tax" can become a major burden if several different organizations are claiming patent violations. A new line of business has emerged that mainly focusses on obtaining and enforcing software patent rights rather than building and marketing usable software systems. Some companies such as Intellectual Ventures have the backing of large corporations while others such as Acacia Technologies are independently enforcing patents. High prices have been paid for software patent portfolios, eg. Commerce One. Many open source developers fear that software patents will prevent them creating software. Such projects generally have no defensive patent portfolio of their own, and no mechanism to pay royalty fees. This has affected several projects ([http://swpat.ffii.org/patents/effects/ FFII Effects of Patents]). Several companies (eg. IBM) have licenced parts of their patent portfolio to open source products or more generally, particularly to encourage standards. However, this represents a small fraction of the total number of software patents that have been issued. It does not give the open source community a defensive patent portfolio which can be used to negotiate cross-licencing agreements. Novell seems to have gone further in committing to actively use its patent portfolio against other companies that might bring actions against certain open source products. The "inventive step" requirement for software patents is viewed by some as being quite low. This allegedly makes it relatively easy to obtain a software patent. The quality of assessment also seems to be quite low, with well known prior art often ignored. This has resulted in some software patents being rejected upon re-examination, eg. the Microsoft FAT Patent File Allocation Table#FAT licensing. In practice, software engineers rarely search patent databases and applications looking for new inventions that could benefit their projects. This is because of 1. the lack of inventive step in many software patents, 2. the obscure language with which software patents are described, and 3. the risk of being assessed for triple damages for knowingly infringing one ([http://www.ffii.org.uk/swpat/ftc/ftc.html#disclosure Federal Trade Commission]). Many infringements are for independent inventions. There are several Economic Studies that assess whether software patents actually encourage or discourage innovation. == See also == *List of software patents *Software patent debate *TRIPS Agreement *Patent Cooperation Treaty *European Patent Convention *U.S. patent law *Business method patent == Notes == * Amendment 23 introduced on September 2003 by the European Parliament to the proposed Directive on the Patentability of Computer-Implemented Inventions [http://www.europarl.eu.int/meetdocs/committees/itre/20030219/488498en.pdf], "Dispositionsprogramm decision" (Bundesgerichtshof 22/6/1976), Nordic Patent Law treaty. * Amendments 23, 24, 25, 39 and 40 introduced by the European Parliament to the proposed Directive on the Patentability of CII [http://www.europarl.eu.int/meetdocs/committees/itre/20030219/488498en.pdf] * Decision T 59/93 of the Appeal procedure before the European Patent Office, Reasons, point 3.4 [http://legal.european-patent-office.org/dg3/biblio/t930059eu1.htm] * i.e. "Software" that does not run on a computer. Used to be frequently argued before the EPO and other fora; this construction was explicitly rejected by the EU directive in article 4a. * Because such functional benefits would be technical, and therefore should be patentable subject matter, according to supporters of broader definitions of CII patentability. == External links == * [http://www.phil.frb.org/files/br/brq101bh.pdf R Hunt. You can patent that?] Overview of the legal history and trends. * [http://www.sourcelicense.com/?q=node/9 SourceLicense. January 2005. IBM Opens Their Patent Portfolio to Open Source] * [http://www.novell.com/company/policies/patent/ Novell. Patent Policy.] Retrieved January 11, 2005. === Economic studies === * [http://www.researchoninnovation.org/swpat.pdf An Empirical Look at software Patents](portable document format) Bessen (MIT) & Hunt (Federal Reserve Bank) * [http://www.researchoninnovation.org/softpat.pdf The Software Patent Experiment](portable document format) Bessen & Hunt 2004. * [http://www.ftc.gov/os/2003/10/innovationrpt.pdf Federal Trade Commission 2003 patent report] Also [http://www.ffii.org.uk/swpat/ftc/ftc.html FFII review of FTC report]. * [http://swpat.ffii.org/archive/mirror/impact/index.en.html FFII Annotated Bibliography] Patent law Computer law

Software patent

''Please add new entries at the bottom of the page. Thanks.'' == Major cleanup == As you can see, I have split this article which was getting really long. The resulting new articles are * software patents under US patent law * software patent debate (needs major cleanup as well - still 50 or so Kb) I kept this software patent to a minimum, as factual as possible, with a listing of relevant definitions (or lack of definition), a short discussion of these definitions, links to the distinct patent regimes regarding the patentability of software and that's all for now. The article on abortion, a highly controversial (and very different) issue, was somehow my model (that one does not even contain a "debate" section). Any comments? --User:Edcolins 22:40, Nov 5, 2004 (UTC) :Unfortunatly the c;eanup needs a cleanup. A "means plus function" example was used to show how a patent could sneak in software. However, means plus functionclaims have a usually a speacial interpreataion, limiting them to the means disclosed in the specification. Thus unless the specification describes the use of software as the "means" it is unlikely that the claim could be read as encompasing software. In other words, "means for . . . " is a really bad example. User:Colmmack 00:22, 6 Nov 2004 (UTC) ::Thanks for this comment about functional features and means-plus-function claims. Although US patent law does not seem to allow means-plus-function claims to sneak out in software implementations when there is no explicit support in the description, certain jurisdictions such as the European Patent Convention allow this to happen provided that it would have been clear for the man skilled in the art that a software implementation could be used, even though the description does not explicitly mention that a characteristic can be "softwarized"... I have added the limitation "under certain jurisdictions". More on this may be explain in the "Software patents under..." articles. --User:Edcolins 11:47, Nov 6, 2004 (UTC) :::What you are here discussing is an equivalence point -- i.e., it is well known that an equivalent of a 'hard' claim element may exist in software, and thus substituting software will be considered to be infringing means. Technically, such an arrangement might also give rise to �112(6) equivalence under US law as well. Still, I would be very cautious about using a means-plus-function element as an example in this context. The key issue is equivalents and indeed, where an invention in toto is novel, holding the replacment of a hardware element with a well known software equivalent to be infringing would not seem to me to be particularly controversial. User:Colmmack 19:04, 6 Nov 2004 (UTC) :::: I understand that, under US patent law, some decisions have restricted the scope of a means-plus-function claim to the equivalents of the elements described in the description. To the best of my knowledge, this does not apply in European patent law (as far as the European Patent Convention is concerned at least). The doctrine of equivalency according to the European patent case law seems to serve only to extend the protection beyond the wording of the claim, when a structural feature is claimed. When a functional feature is claimed, the doctrine of equivalency does not apply to decide whether the functional feature is disclosed "in a manner sufficiently clear and complete" according to Art. 83 EPC [http://www.european-patent-office.org/legal/epc/e/ar83.html]. Thus, it may be possible to draft a claim which encompasses software implementations without describing explicitly this type of implementation in the description (provided that it would be obvious for a person skilled in the art to trade the disclosed hardware implementation for an undisclosed software implementation). By my opinion. --User:Edcolins 08:19, Nov 8, 2004 (UTC) :::::It's somewhat more complex - there are two forms of equivalence in US patent law, the doctrine of equivalents which is seperate from �112 paragraph 6 equivalence in means-plus-function claims. The first is an essentially legal doctrine of claim interpretation, the latter is a statutory provision based on the language in 35 USC � 112 that allows means-plus-function claims ---- so its not decisions limiting means-plus-function, it is the underlying statute. :::::�112 equivance is essentially the same as the doctrine in European patent law -- a structural element that is replaced by an obvious equivalent to what is disclosed in the specification -- but �112 is narrowly drawn. EU patent agents fall easily into using means-plus-function language in US claims without realizing that it may limit claims rather than make them broad -- i.e., all the intended means and their equivalents need support in the specification. I belive that the same would tend to apply to a means-plus-function element in a European patent, i.e., the scope of the means would be limited to that obvious and which corresponds to the means in the spec User:Colmmack 19:30, 8 Nov 2004 (UTC) == EU Directive on the Patentability of Computer-Implemented Inventions - Wikipedia:Neutral point of view == Hi User:Rl, I modified your version [http://en.wikipedia.org/w/wiki.phtml?title=Software_patent&diff=0&oldid=7656958]. Neutrality is also about Wikipedia:Neutral point of view#Introduction, which should mean not stating only what is considered by the open source community, but also by economists, the industry, the patent profession and so forth. However, it would be cumbersome to state each and every position in this general article, while the explanations of positions are clearly belonging, I think, to the article about the EU Directive on the Patentability of Computer-Implemented Inventions we are talking about (which is partially the case as you can see in the "reactions" section). Stating that the proposed directive is controversial might be enough in this more general article by my opinion, and might be enough to lead the reader towards a more detailed explanation of the European directive, if he wishes to know more about the subject. --User:Edcolins 20:55, Nov 19, 2004 (UTC) Well, in fact you removed a side of the dispute and imposed your view of the dispute. Phrases like Intellectual Property are Us-centric. NPOV means document all sides and identify the stakeholders. == Please cite your sources, preferably authoritative ones == I removed this paragragh: :On a broad definition, software patent is sometimes taken to categorise any patented invention which could be fully specified by the code of a computer program operating particular known conventional hardware. Please cite your sources, preferably authoritative ones. Thanks. Please also justify why the term "computer-implemented inventions" would be broad (... close to the broad definition above). I don't think this is correct. --User:Edcolins 11:35, Nov 25, 2004 (UTC) == FOLDOC definition added == I've added the definition from Foldoc, not because I think it's particularly definitive, but because I think a very simple, even over-simplistic, definition along the lines of "a software patent is a patent which can be infringed by software" is a good place to start the article. I think it's better for the reader to give them at least somewhere to stand, and then explain what's wrong with it, rather than throw them straight into a swirl of confusion. The fact that Foldoc is by no means necessarily a definitive authoritative legal resource I think if anything underlines the point made in the subsequent paragraphs. Furthermore, it's a definition which ''is'' out there on the net, so I think it's no bad thing to present it and critique it. My text I think could use some copy-editing for better readability, but I hope it's a useful verion 0.1 enhancement. :The FOLDOC definition is fine enough. However the one you added is slightly different, a rather misleading: "a software patent is a patent which can be infringed by software". A patent can only infringed by an action (using, selling, importing, producing), not by a product, nor a process. I tried to reword you version, but I am not satisfied yet about the criticism of the FOLDOC definition. --User:Edcolins 12:10, Nov 27, 2004 (UTC) :I removed the part criticising the FOLDOC definition unless there is some facts behind this comment, which looks like "original research" to me. --User:Edcolins 21:24, Dec 8, 2004 (UTC) ::I don't know that I'd necessarily agree with that comment; but I think the article does read better with your cut, now leaving the discussion of different places where people have suggested drawing the line re acceptable and unacceptable subject matter entirely to a single useful catalogue at the end of the section. (To which I have added the additional point of view that no software should ever be infringing whatever any patent says, because this is another legislative suggestion which is often made, whatever one might think of its pros and cons). ::I have also moved the terms "software-enabled invention", "software-related invention", and "software-operated invention" back in with "computer-implemented invention", because as far as I can see all of these terms are entirely synonymous; and in clear distinction to the discussion in the remainder of the section as to different notions of how one might identify unacceptable "pure" software patents. --User:Jheald 20:41, Dec 9, 2004 == Patents for a protection gap of copyright law? == ''"his forbids the direct copying of any part of the program code. Applying for, and being granted a patent gives much stronger protection. The invention achieved by the code may then be protected, and others who use the same invention may be sued to stop, or forced to licence the patent (even if they have come up with and developed the idea independently). This gives the patent-owner much stronger protection for his invention. But it also means he has been granted a state-backed monopoly, and the chance to close out all competition, if the patented invention cannot be avoided. The question of whether in the area of software this is on balance a good thing or a bad thing for society has attracted intense and heated legal, academic and political disagreement. This is reviewed in the associated article Software patent debate."'' This paragrpah is wrong, because software is no "invention" according to Art 5.2 EPC. In fact there is nothing such as a "software invention", professionals in the field do not speak of inventions but ideas, concepts, abstractions ecc. "gives much stronger protection" is inaccurate as patents covers something different. Copyright law differs in member states of the EU. Copyright extends to more the just 1:1 copying. Stronger is no neutral term. The real question is rather whether patent law was an appropriate tool to provide protection for software ideas/concepts. There are many indications that patent law fails. Hartmut Pilch for instance proposes a copyright style system. Additionally the so called "protection gap" is pure fiction put forward by patent attorneys. Software developers don't ask for a software idea protection and if the burden of proof lies with the proponents of patents to show that it was the appropriate tool given the fact that patent pratice is developed under different market structures. ---Andre, 5.12.2004 == Restructure Page == === aberglas starts === I've tried to clean up the article and keep it tight. Still far from perfect, for example, a better history would be good. The last two sections are also rough. I hope people don't object. :: What about a few typical examples? And a test suite with characteristics. Note that this is NOT the place to have the Software Patent debate. Rational:- * Software patents and Copyright. This is the main definition section, clarifying the different types of intellectual property. :: Why compare Patents and Copyright. Why not Software trademarks and .. copyright? * Brief History. Given the substantial changes, I thought this was useful. Maybe add a new section after it "Current Status"? * Outline of Controversy. I felt that the controversy could not be completely ignored in this top level page. Especially as the Software patent debate page is such a mess. I'm hoping that others will tighten this, but not make it much bigger. Just the key points of the debate. * Scope of Software Patents. This is a rework of a previous section that was not well written IMHO. It is sort of definitional, but also a bit of a technicality. I would not object to someone deleting it entirely. * Law. I have not touched this. I think it probably should be removed, and merged into a Current Status topic. Software patents are all about law, so I don't see the point of the title. I've also gone through this discussion and deleted the rambling discussion which predates the split into a separate [Software Patent Debate] page by Edcolins. User:Aberglas 04:12, 29 Dec 2004 (UTC) aberglas === edcolins replies, definitions... === :I have to say I have some reservations about your amendments... :* Why mixing software patents and business method patents? There is no reason for this. :: Software patents and business process patents do have close ties. And both relate to services. ::: the other question is whether software patents will subsequently introduce bm-patents. Just think of ERP Systems. A link to a new article about business method patent is in order but mixing them is not. A business method can be purely implemented without any kind of software, while a software can obviously relate to something else than a business method. :* I am convinced a "Definitions" section should start the article. Otherwise it is impossible to understand the issues at stake. The "Software Patents and Copyright" section should come later since it is important to understand first what considered to be a software patent. A comparison is interesting but at a later stage. I do not understand why you belittle the use of a "Definitions" section. :*The different type of intellectual property can be found and should be found in the Intellectual Property article. :*Please cite your sources for you "definitions varying from broad to narrow". There is no point inventing new definitions instead of the ones already put forward. :I reverted some parts, but let other. Software patent is all about law and this should then come first to my humble opinion. --User:Edcolins 21:40, Dec 30, 2004 (UTC) :: All about law? This is what von hayek criticized in the 40th. It is dangerous to leave this public policy debate to the lawyers. The horse rides the rider so to speak. === aberglas response === Thanks to edcolins for reviewing my work. ==== Business methods ==== Business methods are only patentable when implemented in software, which is implemented on computing machinery. They are thus very much the same thing. Eg. is the the Amazon one click patent a "Software Patent" or a "Business Method Patent" -- the distinction is not useful. But I'll leave this alone. However, the current first paragraph is a bit woffly IMHO, so I have tightened it up again, but leaving out Business Method Patents. ==== Definitions ==== I think the general definition of a software patent is a patent is a patent that concerns software. This is not worth stating. I don't think that there is much controversy with this general definition -- it is just a was to focus an article. Where there is controversy is that the EU bans "programs for computers" and some advocates of patentability have tried to interpret this along the lines of "pure software that does not do anything useful". This is very much a technical legal point, so I have moved it under the Law section. I don't think that anyone goes out of their way to define "Software Patents" as such, but they do go out of their way to define the meaning of "programs for computers" etc. I wonder about the utility of other quotes in the article. For example it's great that someone looked up the the FOLDOC definition "A patent intended to prevent others from using some programming technique". However it is essentially meaningless in IMNSHO, unless you think that there some unstated but meaningful distinction between a "programming technique" and a "software technique". I have left this in, but not because I think that it is helpful. Where there is potential source for confusion for someone new to the area is with copyright vs patents. I take your point that these could be discussed at a more general level of intellectual property. However, in software this distinction is particularly important and easy to misunderstand. That is why I think that the distinction should be clarrified for software specifically. It is also why I made it promenant in this article -- in a practical sense it is definitional. So I have left a brief Definitions section because edcolins things it is useful, but I'd be happy to see it removed. Others might want to expand it a bit. I also moved the Controversy summary to the Software Patent Controversy page, I'm sure edcolins will agree with this one! User:Aberglas 02:51, 1 Jan 2005 (UTC) aberglas :Aberglas, *I respectfully don't agree with this one: "''Business methods are only patentable when implemented in software, which is implemented on computing machinery.''" In the States, it goes further than that. The State Street Bank decision and the statement "anything made under the sun by man is patentable" makes it reasonably clear (I think) that you can patent business methods, without the need for them to be computer-implemented... *Alright with spliting the definition section, it make sense. *Quotes are essential, if you should meet the wikipedia "cite your sources" criterion... *I changed this ''"However the European Patent Convention, Article 52 specifically excludes "programs for computers", so these patents are probably not be enforcable."'' to ''"However the European Patent Convention, Article 52 specifically excludes "programs for computers" as such."'' The assumption you make is doubtful to my humble opinion. The Case law of the Boards of Appeal of the EPO is consistent, and reasonably followed by national jurisdictions I think. :: No. The EPO is an independend institution which did the reinterpretation on its own, anticipating a change of law. However, many courts in memberstate stick to other interpretations. This was the reason for the EU directive by the Commission: to harmonise law of member states in order to provide legal certainty for those patents issued. The EU directive will only cover this enforcability in the member states. The EPO case law only applies to the EPO pratice, it has no legal validity in the member states although member states are influenced by EPo pratice. Same the EU directive has no legally binding purpose with regard to the EPO pratice, however the EPO will have to politically correct its interpretation if patents in those EU memberstates are not enforcable because of the directive. Some states in Europe have a strong statutory law tradition. Member states are bound by the EPC, not by the interpretation of the EPC by the EPO. *Moving the controversy section was indeed a good move.. :Thanks for your work. --User:Edcolins 15:15, Jan 1, 2005 (UTC) I think that EdColins comments make sense. I think that we are done for the time being. The Software Patent Debate article is a much messier project though, especially maintaining NPOV. All help gratefully accepted. User:Aberglas 01:02, 2 Jan 2005 (UTC) aberglas == NPOV for the worse == ''AB responses by User:Aberglas 01:31, 7 Jan 2005 (UTC) aberglas Your comments would have more weight if you registered a username!'' I think now the article is not NPOV anymore ''AB Interesting. I was concerned that it was getting too anti-patent. I supose that if everyone thinks that I am biased the other way I am doing well.'' a) the term intellectual property is used which reflects a certain view and is terminology used in International lobbying ''AB Well, they've been successful, it is the term that is used.'' :: only in the US. It was introduced by WIPO. ::: Sadly that's not necessarily true - the Charter of Fundamental Rights which forms part of the proposed EU Constitution contains a clause "Intellectual property rights will also be protected". --User:Ryano 16:14, 19 Apr 2005 (UTC) b) "Software patents are often confused with software copyright." In fact nobody involved in the debate confuses Patents with copyright. This is however often said by the patent attorney community. Clarifying position which nobody has. In fact there is no proof or evidence given for this remark. ''AB Sure, but the page is not just or even mainly for "people involved in the debate". The media certainly gets these confused.'' :: What kind of confusion is it? It is not enough to say: this is a this is b and media gets it often mixed up rather than starting with this "people are dumb" kind of accusation? c) "Computers powerful enough to run complex software have existed since the 1950s." In fact software is not based on computers = sw execution machines but existed prior to hardware, e.g. on a Turing machine. ''AB And this is the type of useless software that everyone agrees does not have any technical effect.'' :: What meaning does it have that it has "no technical effect", would you say that software run on a computer has a tehcnical effect in the sense of the patent law?? this is a legally dubious remark. IMHO Software is always to be run on a "virtual machine". The VM can be a computer, or a interpreter that is itself run on a computer, e.g interpreted code, p-code, Java binary, prolog. I do not understand why the sentence matters here. Regarding virtual machines you shall get informed. Wikipedia is a wonderful source to bridge the knowledge gap. d) The term "computer-implemented invention" was put forward by the European Commission It was put introduced by the EPO ''AB ??'' :: Some persons say it was cast by IBM's Fritz Teufel. e) "Applying for, and being granted a patent gives much stronger protection." I disagree with that, it is another form of protection. "stronger" is not NPOV. The question is whether this kind of protection suits the market ''AB Disagree. It is obviously stronger. That is what upsets lots of people.'' :: ? patent = 20 yrs. copyright >= 50 yrs, what upsets people is that classes of possible implementations are protected. :: not "stronger", it protects a different subject matter. You cannot compare copyright and patents. And: Patents are a weaker form of protection e.g. regarding the duration. Cpr and patents are two entirely different systems. Would you say that trademarks are a stronger protection than copyright? Probably a "broader" protection. However it is the term "strong" that implies that it was better. And this is not NPOV. f) while modern copyright has an indefinite life Us-centric ''AB yes, but we need to keep things succinct. Australia is following. Don't know about Europe.'' :: Wikipedia has to stick to the international standards. It is the Berne Convention or the CPR protection. USA and its Sbono act is a special case, nobody will follow. e) Patenting software has become popular. Popular derived from latin means "common in the public". The cited examples are not individuals ''AB Nonsense, I think that the meaning is clear.'' :: wording counts here, how do you measure popularity. polpular among which community? f) The EPO -- explain the shortcut I believe this page shall not be for the debate but for the terminology only. ''AB there is another page Software Patent Debate I have addressed your other concern about "software invention", although it is a bit trivial IMHO. :: EPO is a shortcut that shall be explained. and terminology is often very fuzzy in the debate == "Practical effects of software patents" section == I am concerned about some parts of this particular section. Some bits should clearly be moved to Software patent debate. Other are pure speculations. In order to keep the article clean, factual and neutral, information should not be added unless supported by external sources. Look at this section George W. Bush#Public perception and assessments, where many sources are cited. --User:Edcolins 09:51, Jan 7, 2005 (UTC) Please be more specific. One the one hand I have tried not to put the debate in the patent section. But on the other hand I try to keep the debate page free of basic facts. I think that the test for what goes in the main softare patent page should be facts that ''Someone would want to read that wants to understand software patents but has no interest in public policy. For example a software engineer or CTO that needs to develop policies for dealing with them.'' So to such a person the number of patents is important, as are the cross licencing deals. Are they actually being enforced? Can they be enforced (maybe this should move to the law section)? The new line of business section emphasizes the fact that software patents are very real and need to be planned for (maybe the word "useful" is gratuatous"). Etc. with the open source perspective, inventive step (maybe should move to law and be elaborated), and searching. The last paragraph may fail this test and could be moved to the debate page. I don't feel the need to cite references to things that are obviously true, eg. "Many open source developers fear software patents...". Possibly the other sentences in that paragraph could be tightened up. Anyway, tell me your gravest couple of concerns and tighten up as needed. User:Aberglas 01:38, 8 Jan 2005 (UTC) aberglas :For instance, this is unsupported by facts: ::"In practice, software engineers rarely search patent databases and applications looking for new inventions that could benefit their projects. This may be because 1. the lack of inventive step in many software patents, 2. the obscure language with which software patents are described, and 3. the risk of being assessed for triple damages for knowingly infringing one. Many infringements are for independent inventions." :Generalizing what all software engineers would do, without your citing sources, is odd. This paragraph should be removed to my opinion. "This may be because (...)" also is pure speculation. --User:Edcolins 22:36, Jan 11, 2005 (UTC) :: In fact all the leading books about software engineering do not mention patenting and I do not know a single programmer who browses patent databases except myself. I know a lot of them. I affirm the second remark. The third does only apply for the US legal situtation as far as I know. ::The points about triple damages, use of patentspeak rather than source code, and the difficulties of interpreting claims and their boundaries were all sharply flagged in the 2003 Federal Trade Commission report (see especially [http://www.ffii.org.uk/swpat/ftc/ftc.html#disclosure] and [http://www.ffii.org.uk/swpat/ftc/ftc.html#patent_scope]), and can also be found widely attested elsewhere. Note especially the FTC's summary: "[Representatives] discounted the value of patent disclosures, because they do not require the disclosure of a software product's underlying source code". The questionable quality of many software patents also appears again and again as a running theme. --User:Jheald 23:59, Jan 11, 2005 (UTC) :: Thanks Jheald for the link. But I should be clear as to why I put the paragraph in in the first place. It was ''not'' to argue that software patents were bad. It because someone not familiar with software patents but uninterested in public policy might want to know whether they should spend time searching to see if they might infringe some. In many peoples view this is not productive. (EdColins does a good job of keeping us on our toes citing references. The article is better because of this exchange.) User:Aberglas 01:21, 12 Jan 2005 (UTC) aberglas == suggested Definition swpat == http://www.ffii.se/erik/EPIP/img8.html == Exploitation of cross-licencing agreements by a third party == Suppose two companies have a cross-licensing agreement and one of them infringes on a patent of the other, to which that other company then does not react. Now suppose a third party notices this and then comes up with its own solution, also infringing on that patent. If the 'damaged' company then sues them, can they then claim that that company should first sue the first 'infringer' and if they don't, then obviously they don't value their property as much as they claim (or something similar)? Would this hold up in court (in various contries), would it simplify matters and, most importantly, would that reduce the cost of the court case sufficiently to make it affordable for others than large companies? The best outcome would be that a judge rules that the 'damaged' company will first have to sue the other company. Which they won't, so you're in the clear because it will never appear before court. I don't know much about law (and of course this also depends on which court we're talking about (eg US or EU)), but I can imagine something like this might work. Also a central question there is if cross-licensing agreements have a legal basis. User:DirkvdM 11:14, 2005 May 6 (UTC) : I'm not sure that patents imply any obligation to defend the rights granted therein, unlike trademarks, for example. If it's shown that you're not taking action to defend your trademark, you can lose it, but I don't believe there's any such obligation on patent holders. So patent holders can basically pick and choose who they sue and who they don't sue. But IANAL --User:Ryano 12:49, 6 May 2005 (UTC) : If company A owns a patent PA, if company B owns a patent PB, and if company A grants a license to company B for exploiting patent PA while at the same time company B grants a license to company A for exploiting patent PB, company A and company B are said to have concluded a cross-licensing. This means company B can exploit the subject-matter claim (patent)ed in patent PA and that won't constitute an patent infringement. So if "two companies have a cross-licensing agreement" and the situation in which "one [A or B] of them infringes on a patent [PB or PA] of the other [B or A]" cannot arise. : If a third party, let's call it company C, infringes patent PA, company A can sue company C for infringement. In most legislations, in this case, the licensee, company B, can even become party to the court proceedings and claimed damages from company C. I would say company C has no chance at all arguing that company doesn't value its intellectual property in this case. : Your last question is very interesting: "Are cross-licensing agreements legal?". To a large extent, yes (otherwise this could completely block the exploitation of a technology of which two or more inventions are patented), but this can easily become a complex issue, involving (as far as the EU is concerned) Art. 81 and 82 of the EC Treaty (abuse of dominant position, etc) as well as licensing directives, cartels, etc. TINLA. You might wish to post this question on Talk:Patent instead. --User:Edcolins 13:06, May 6, 2005 (UTC)

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