Monday, April 06, 2009

Stop Software Patents!!

2008-2009 Petition to stop software patents in Europe

SIGN THE PETITION here:
http://stopsoftwarepatents.eu/

Introduction

Our petition aims to unify the voices of concerned Europeans, associations and companies, and calls on our politicians in Europe to stop patents on software with legislative clarifications.

The patent system is misused to restrain competition for the economical benefit of a few but fails to promote innovation. A software market environment is better off with no patents on software at all. Healthy competition forces market players to innovate.

European court decisions still accept in many cases the validity of the software patents granted by national patent offices and the European Patent Office (EPO) that is beyond democratic control. They not only continue to grant them, but also to lobby in favor of them. Despite the current deep crisis of the patent system, they are unable to reform and put at risk too many European businesses with their soft granting policy.

On 2005 the Commission appeared to be more supportive to the interests of major international conglomerates than of small and medium sized enterprises from Europe - who are a major driving force behind European innovation. The European Parliament rejected at the end the software patent directive, but has no rights for legislative initiatives.
Considerations
Studies

A large number of serious scientific and economic studies justify ruling out patents on software.
Copyright for software, but no patents

Software authors are already protected by copyright law, allowing others to innovate in the same space generating healthy competition, but this protection is undermined by patents on software. It is far too easy to violate patents on software whilst being completely unaware of any transgression. Software companies do not use and do not need the patent system to innovate. They must be protected from owners of dubious granted patents.
Litigation instead of innovation

Software patents miss their legitimate purpose. Patents on software favour litigation in detriment of innovation, defeating their democratic justification. They force software producers to spend on bureaucracy, lawsuits, and circumventing dubious granted claims on software what would otherwise be spent on Research and Development. Owners of patents on software, who sometimes doesn't produce software themselves, obtain a means to exert unfair control over the market.
American mistakes

In the USA there are billions of dollars in litigation over software patents each year, and not only between software companies, but also other companies just because they have a web site (this starts to happen in Europe also). This mistake needs to be avoided in Europe.
We urge our legislators

* to pass national legal clarifications to substantive patent law to rule out any software patent;
* to invalidate all granted claims on patents that can be infringed by software run on programmable apparatus;
* to also strive to propagate these rules to the European level, including the European Patent Convention.

Written statements in accordance with Article 10 of the
Rules of Procedure of the Enlarged Board of Appeal
Enlarged Board of Appeal GBK EBA GOR
European Patent Office
Erhardtstrasse 27 19. tdärz 2009
80331 MUNCHEN
Germany
Concerning case G 3/08
This written statement is submitted by me in my role as a private citizen and inventor in Sweden, one
of the EPC member states. The decision of the EBoA strongly affects my ability as a programmer and
inventor in the field of software to create and market new products.
To fully understand the issues at hand, one needs to understand the nature of programming and
software, the nature of inventions and the contents of the EPC. While I am certain that the EBoA has a
superior knowledge of the latter, I believe I can bring some more understanding of the former into the
decision.
QUESTION I
CAN A COMPUTER PROGRAM ONLY BE EXCLUDED AS A COMPUTER PROGRAM AS SUCH IF IT
IS EXPLICITLY CLAIMED AS A COMPUTER PROGRAM?

No, if it is reasonable to assume that the implementation of the invention requires the use of a general
computer, the computer program may be excluded regardless of the explicit wording of the patent
application.
It is a reasonable test for a patent examiner to make, when evaluating the patent application. It should
result in very few cases of ambiguity and would be easy to apply.
QUESTION 2
(A) CAN A CLAIM IN THE AREA OF COMPUTER PROGRAMS AVOID EXCLUSION UNDER ART.
52(2)(C) AND (3) MERELY BY EXPLICITLY MENTIONING THE USE OF A COMPUTER OR A
COMPUTER-READABLE DATA STORAGE MEDIUM?
No, this would render art. 52(2) and (3) totally ineffective. The authors of the articles put them there for
a well defined purpose. They did not intend for the articles to be easily circumvented by clever wording
of patent applications.
(B) IF QUESTION 2 (A) IS ANSWERED IN THE NEGATIVE, IS A FURTHER TECHNICAL EFFECT
NECESSARYTOAVOID EXCLUSION, SAID EFFECT GOING BEYOND THOSE EFFECTS
INHERENT IN THE USE OFA COMPUTER OR DATA STORAGE MEDIUM TO RESPECTIVELY
EXECUTE OR STORE A COMPUTER PROGRAM?
Yes. Again, we must look at the intentions of the authors of the articles. All the exceptions to
patentability that are mentioned in article 52 of the EPC are the results of mental endeavours which lack
a specific tie to the manufacture of physical goods or the efficiencyof a physical product.
It is my impression that the authors of the EPC viewed all the exclusions as having similar properties
from a patent perspective, and that they should all be treated in the same way. Discoveries, scientific
theories and mathematical methods are abstract ideas that can have a real world manifestation.
Aesthetic creations, methods for playing games and doing business are likewise abstract ideas that can
be applied to real world scenarios. The similarity between the act of creating computer programs and
these other activities is striking. The difference between the exclusions and a process for synthesising a
molecule, reducing the materials needed in a mechanical component or reducing the braking distance
of a vehicle is similarly striking. The latter group is meaningless without a physical entity, while the
former is not. An aesthetic creation is a manifestation of an idea that exists independent of the physical
object of art. A mathematical method or formula is meaningful even if it isn.t applied to a physical
problem. The rules of a game are the same regardless of whether the game is played with wooden
pieces, on a computer or in the minds of people. The sequence of execution of a program is the same
regardless of whether the program runs on a physical machine, a virtual machine or in the minds of
people.
QUESTION 3
(A) MUSTA CLAIMED FEATURE CAUSE A TECHNICAL EFFECT ON A PHYSICAL ENTITY IN THE
REAL WORLD IN ORDER TO CONTRIBUTE TO THE TECHNICAL CHARACTER OF THE CLAIM?
Yes. As explained under Question 2, the group of exclusions under article 52(2) explicitly exclude
human endeavours that contain an element of innovation, but lack a physical manifestation. We think
that this is a clear message from the authors of the EPC that new ideas that lack a technical effect on a
physical entity in the real world should not be the subject of patents.
(B) IF QUESTION 3 (A) IS ANSWERED IN THE POSITIVE, IS IT SUFFICIENT THAT THE PHYSICAL
ENTITY BE AN UNSPECIFIED COMPUTER?
No, an unspecified computer is the physical representation of an abstract idea. This was firmly
established by Alan M. Turing in the 1930.s. However, if a patent application requires a specific physical
manifestation of the abstract idea of a computer, then patentability can
not be excluded by this criterion alone.
(C) IF QUESTION 3(A) IS ANSWERED IN THE NEGATIVE, CAN FEATURES CONTRIBUTE TO THE
TECHNICAL CHARACTER OF THE CLAIM IF THE ONLY EFFECTS TO WHICH THEY CONTRIBUTE
ARE INDEPENDENT OF ANY PARTICULAR HARDWARE THAT MAY BE USED?
If the Enlarged Board of Appeal reaches the conclusion that question 3 (A) should be answered in the
negative, I would like to argue that that this question also should be answered in the negative. If a
technical effect is not tied to any particular hardware, it is an abstract idea. It is therefore clearly a
.program, as such. and explicitly exuded
from patentability by article 52 (3).
The EBoA has to make a decision which adheres to the letter and intent of the EPC. At the same time,
it needs to consider the practical consequences of its decision. The set ofanswers to the questions in
this written statement will result in clear and easy to follow guidelines for the patent examiners. This will
improve working conditions and reduce the number ofdubious and inadmissible patent applications. It
should also reduce the total burden of work for the EPO.
The set of answers to the questions in this written statement would not have significant adverse
consequences. Programs are covered by copyright, making even small fragments oftruly original
works the subject of legal protection. If this protection is insufficient, one needs to ask exactly what a
patent would protect. The only answer I can come up with is a mathematical method, which is explicitly
excluded in article 52(2)a, in the EPC.
Goteborg 17 March 2009
Jacob Hallén
Gotabergsgatan 22
411 34Goteborg
Sweden

documents.epo.org/projects/babylon/eponet.nsf/0/45D90730515B72FCC125757F005A2A43/$File/G308_Amicus_Curiae_Briefs_Jacob_Hallen_en.pdf


Referrals pending before the Enlarged Board of Appeal

Status: 23.12.2008

23.12.2008
Case G 4/08: Referral under Art. 112(1)a) EPC by the Legal Board of Appeal J 8/07 - 3.1.01 ("Langue de la procédure", Appl. No. 02759818) to the Enlarged Board of Appeal, pending under Ref. N° G 4/08.

23.10.2008
Case G3/08: Referral under Art. 112(1)b) EPC by the President of the EPO (Patentability of programs for computers) to the Enlarged Board of Appeal, pending under Ref. N° G 3/08.

Amicus curiae briefs:

* Philips
* Hallén, Jacob

7.5.2008
Case G2/08: Referral under Art. 112 (1) a) EPC by the Technical Board of Appeal
T1319/04 - 3.3.02 (Dosage Regimen) to the Enlarged Board of Appeal, pending under Ref. N° G 2/08.

7.5.2008
Case G1/08: Referral under Art. 112 (1) a) EPC by the Technical Board of Appeal
T1242/06 - 3.3.04 (essentially biological processes) to the Enlarged Board of Appeal, pending under Ref. N° G 1/08.

Case G2/07 and G1/08 will be considered in consolidated proceedings.
(Communication from EBA: DE / EN / FR)

18.6.2007
Case G2/07: Referral under Art. 112 (1) a) EPC by the Technical Board of Appeal
T 83/05 - 3.3.04 (essentially biological processes) to the Enlarged Board of Appeal, pending under Ref. N° G 2/07

23.4.2007
Case G1/07: Referral under Art. 112 (1) a) EPC by the Technical Board of Appeal
T 992/03 - 3.4.01 (Methods for treatment by surgery) to the Enlarged Board of Appeal, pending under Ref. N° G 1/07

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posted by u2r2h at Monday, April 06, 2009

1 Comments:

Anonymous Nick Robinson said...

Hi Jello,

I found your blog post very interesting.
i am Nick Robinson,a community member at Patents DOT Com(a comprehensive free patent
search engine).Will like to talk(through email) to you,is this the right time to talk about or should we talk during weekends ?

Regards,
Nick Robinson

E-nickrbson@gmail.com

Tuesday, April 7, 2009 at 10:51:00 PM PDT  

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