That anti-patent pamphlet I mentioned

Tue Dec 10 18:50:28 UTC 2002

On Mon, Dec 09, 2002 at 08:49:53PM +0100, Arnoud Galactus Engelfriet wrote:
> > Those institutions granting software patents 
> > are not legitimated by the stablished law, they are only 
> > legitimated by their own interpretation of the law. For me 
> > there's a big difference. Specially when their interpretation 
> > simply does not make sense. 
> 
> Then say it doesn't make sense. "Illegal" means something
> more serious, especially to lawyers and politicians, and I
> think you're sending the wrong message if you call this
> illegal.

I think it is very important to reject the interpretation and any efforts to
be dragged into a bottomless discussion of what the law might say.  The law
is very clear (Art. 52 Abs.1 EPC) in that it forbids software patents.

And a software patent claim does not become a non-software patent claim by
putting the software on a data medium (see the IBM case).  It is downright
outrageous that this was even attempted.  It shows clearly that the patent
practice has left the law behind.

Don't make it appear as if there was any confusion about what is software
and what is technical.  This discussion has already happened in the 50s,
60s, 70s at lengths.  In the words of the German Federal Court of Justice
(BGH) in its famous Dispositionsprogramm decision of 1976 (translation by
Hartmut Pilch):

     Stets ist aber die planmäßige Benutzung beherrschbarer Naturkräfte
     als unabdingbare Voraussetzung für die Bejahung des technischen
     Charakters einer Erfindung bezeichnet worden. Wie dargelegt, würde
     die Einbeziehung menschlicher Verstandeskräfte als solcher in den
     Kreis der Naturkräfte, deren Benutzung zur Schaffung einer Neuerung
     den technischen Charakter derselben begründen, zur Folge haben,
     dass schlechthin allen Ergebnissen menschlicher Gedankentätigkeit,
     sofern sie nur eine Anweisung zum planmäßigen Handeln darstellen
     und kausal übersehbar sind, technische Bedeutung zugesprochen
     werden müsste. Damit würde aber der Begriff des Technischen
     praktisch aufgegeben, würde Leistungen der menschlichen
     Verstandestätigkeit der Schutz des Patentrechts eröffnet, deren
     Wesen und Begrenzung nicht zu erkennen und übersehen ist.

     However in all cases the plan-conformant utilisation of
     controllable natural forces has been named as an essential
     precondition for asserting the technical character of an invention.
     As shown above, the inclusion of human mental forces as such into
     the realm of the natural forces, on whose utilisation in creating
     an innovation the technical character of that innovation is
     founded, would lead to the consequence that virtually all results
     of human mental activity, as far as they constitute an instruction
     for plan-conformant action and are causally overseeable, would have
     to be attributed a technical meaning. In doing so, we would however
     de facto give up the concept of the technical invention and extend
     the patent system to a vast field of achievements of the human mind
     whose essence and limits can neither be recognized nor overseen.

There are many software patents being granted, and they are all granted in
disagreement with the law.  The reason this was possible is that the patent
attorneys have invented an artificial language that clouds the simple facts
into a pseudo technical framework, and that the public was mostly ignorant
about this for many years.  I am sure that if stealing would be treated in
courts like patent claims are being treated, there would be a row in the
streets.

> > And it is important to note that we are not advocating a change in law, 
> > but the pro-swpat camp is. We just want the current law to be observed
> > in a much more rational way than it is currently.
> 
> The pro-swpat camp actually also believes you are advocating
> a change in the law. You want to go back to the 1970s situation
> with the old German "controllable forces of nature" approach.
> On the other hand they want to keep things as it is: programs are
> patentable, but only if they exhibit a further technical effect
> just like a hardware invention needs to do.

This is a very twisted way to look at the situation.  The 1970s situation is
what the law is today.  It is also what TRIPS demands.  It is what every
law scholars advise.

You are right in that the law has been ignored and overcome by current
practice to grant patents on everything that remotely has some technical
language in it.  However, this is no reason to change the law, but a reason
to control the patent office better so that it does its job properly.

Please give me one example of a software patent (or claim thereof) where a
program should be patentable because it has a further technical effect just
like a hardware invention needs to do.  Just one example, and don't forget
to describe what the technical effect is, in normal language that can be
understood by the people here on the list.

> Well, yes, but if someone comes to you with an invalid patent
> you normally don't settle for a small amount. If you know it's
> invalid, you can say "go ahead and sue me" and see if he dares.

I want to see one middle size company which goes ahead and sues IBM or
Microsoft over an alleged patent violation.  Of course, it is also the small
companies and last but not least the free software programmers.

Even now, where software patents are not legally possible, people have been
forced to retract software from the web because companies came with a
possibly invalid patent and claimed that the software published violates it.
The harm is already being done, and nobody, not even the big companies, say
"go ahead and sue me".  They are more likely to say "hey, let's go ahead and
exchange licenses" (cross licensing).

> But that only works for really clear-cut cases, like when you
> have a publication describing all of the invention. If it is
> debatable, you don't want to end up in court since you may lose.

There are no clear-cut cases.

> I think however that most large companies take the view that
> software is nothing special. Why is an MPEG patent valid against
> a decoder board in a DVD player, but not against a software player
> which does exactly the same thing? And what if I put that software
> player on a flash ROM on that decoder board? And that's actually
> also the reason why you will not get much public support from
> large companies. If "software patents" become invalid, then it
> becomes much easier to rip off real inventions simply by doing
> parts in software.

In fact, most companies are against software patents, or don't have an
opinion by themselves and leave the talking to the patent attorneys that
advice them.  Even the members of the BSA (like Oracle, ...) have said that
they don't want software patents, except for two notable exceptions: IBM and
Microsoft.  Both already have a rich patent portfolio which they use to
reinforce their monopoly: By cross licensing, threating, or by protecting
standard documents so that no competing implementations are possible.

> > Most software patents, though are not such a cash cow. 
> 
> Most patents in general are not cash cows. 

That is true for the companies who apply for them.  However, every patent is
a cash cow for a patent attorney, and for the patent offices around the
world.

Thanks,
Marcus

-- 
`Rhubarb is no Egyptian god.' GNU      http://www.gnu.org    marcus at gnu.org
Marcus Brinkmann              The Hurd http://www.gnu.org/software/hurd/
Marcus.Brinkmann at ruhr-uni-bochum.de
http://www.marcus-brinkmann.de/