Campaign against software patents | CatalàCampaign against software patents | Català
The JURI committee working document [1] on the software patentability directive COM(02) 92 by Arlene McCarthy could be improved. Here are some suggestions.The document is part of the work of the committee on Legal Affairs and Internal Market of the European Parliament, that is the one in charge of the software patentability directive COM(02) 92.We have sent this comments on the study to the web forum of the committe [12], that is open to everyone to discuss the directive.
The FFII has more elaborated comments on McCarthy's documents, in the same line as these.
On the Comission's consultation too much credit is given to a biased study of the replies. When it says :
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.
it repeats the mistake of the study of the reply 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. It would be better to say:
However, over 90 % of responses wanted to keep software
unpatentable. Those in favour were industrial property
professionals and government officials. Those against
were users, developers, academics and students (those
likely to innovate in software). 95 % of SMEs were
against, and 81 % of big companies were against [2].
It could also mention the 120000 signatures, 300 sponsors, etc. of the Eurolinux petition [3], one of the largest online petitions ever, or the opinion of the Committe of the Regions of the EU [4], or dissenting views in the Commission, like the Head of Sector "Software Technologies", Philippe Aigrain [5].
Furthermore, the phrase "software running on general purpose computers" misses the point. The criteria should be where lies the innovation, in logical or material findings. Material findings (new uses of physical forces to achieve overseeable effects) may be patentable while logical achievements should not. It is not exactly a matter of the hardware being general purpose or not.
The section titled "current state of the law" might be better titled "current EPO practice". The European Patent Office does not follow the law (the European Patent Convention [6]) which clearly excludes software. It used to follow it, like in the 1978 guidelines [7], but it changed its practice and its guidelines without a change in law that would justify it. The EPO interprets the "as such" clause in EPC as covering no software at all, and grants or rejects patents based on claim wording instead of substance of the application and subject matter. There are guides around on how to obtain European patents for any software [9]. The EPC would clearly not have included an exclusion for "software as such" if it meant that "software as such" is no software, so the interpretation of the EPO is equivalent to ignoring the law.
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 it unpatentable. The novelty must lie in technical grounds, it is not enough to use technical means to achieve new effects if the novelty lies in logic. 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 might be patentable. 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 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.
There is a piece that is very hard to understand for a software engineer:
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 the resources of, and tasks to be performed with, known hardware. Therefore it should not be patentable, just the same as the codecision procedure is not patentable even when 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 assembly-based system where all of Europe's population meets together every monday). On the other hand, new computer games have traditionally struggled to get better memory usage, so they could store more information in memory and achieve greater responsiveness, and it has happened often than a computer game succeded just because it used memory in a more efficient way, and used this increased efficiency to improve user experience (more detailed and/or faster graphics or sound). Saying that a memory optimisation is patentable and a computer game is not sounds absolutely arbitrary to a programmer.
The 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 technicity EPO test), then surely any attempt to apply the algorithm 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.
The fact that the EPO pratice is compatible with TRIPs is not a reason to endorse it. The technicity criteria in old EPO practice [11] and current EPC is TRIPs-compatible too, as the Balkers' study [10] (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. Balker's 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).
[1] JURI Committee Working Document by Arlene McCarthy
http://www.europarl.eu.int/meetdocs/committees/juri/20020619/468231EN.pdf
[2] Analysis of the Commission's consultation.
http://swpat.ffii.org/vreji/papri/eukonsult00/
[3] Eurolinux petition
http://petition.eurolinux.org
[4] Opinion of the Committee of the Regions of the EU
English http://swpat.ffii.org/vreji/cusku/indexen.html#cor
French http://swpat.ffii.org/vreji/cusku/indexfr.html#cor
German http://swpat.ffii.org/vreji/cusku/indexde.html#cor
[5] Philippe Aigrain,
Head of Sector "Software Technologies" in the unit "Technologies and
Engineering for Software, Systems and Services" of the European Commission
Information Society Technologies R&D Programme,
http://cip.umd.edu/Aigrain.htm
[6] European Patent Convention
English http://www.european-patent-office.org/legal/epc/
German http://www.european-patent-office.org/legal/epc/index_d.html
French http://www.european-patent-office.org/legal/epc/index_f.html
[7] 1978 EPO Guidelines
http://swpat.ffii.org/vreji/papri/epo-gl78/
[8] 2001 EPO Guideline
http://www.epo.co.at/news/pressrel/2001_10_05_e.htm
[9] Guide on how to patent software
The Bakels study commissioned by the European Parliament [10] cites
Keith Beresford. Patenting Software under the Euorpean Patent Convention,
London: Sweet & Maskell 2000.
[10] Bakels' study commissioned by the European
Parliament
http://www.europarl.eu.int/meetdocs/committees/juri/20020619/SoftwarePatent.pub.pdf
[11] Technicity criteria
http://swpat.ffii.org/analysis/invention/
http://swpat.ffii.org/analysis/
Dispositionsprogramm decision by the German Federal Court
http://swpat.ffii.org/papers/bgh-dispo76/
[12] WEB forum of the Legal Affairs and Internal Market
committee of the European Parliament.
Topic number 6 starts the discussion on software patentability and the
proposed directive.
http://www1.europarl.eu.int/forum/mi/dispatch.cgi/opendisc