Home Forums Business and Legal Software Patents targeted – you heard it here first

This topic contains 38 replies, has 7 voices, and was last updated by  Anonymous 13 years, 1 month ago.

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  • #5306

    Anonymous

    I have just heard from a most reputable, hands-on source (and don’t press me, for I’ll say no more), that the European Patent Office have unofficially decided to “side with the Public” (well… Eurolinux et al.) and revise their internal policy on granting software patents.

    The following from a European Patent Examiner: about 80% of applications currently undergoing prosecution (that’s the bit between filing and granting) will be refused, a lot of applications that are now being refused “would have been granted 2 to 3 years ago”.

    And this in the full face (and breach) of Legal texts, their interpretation by way of Guidelines and of course Legal precedent.

    So…

    (i) if you’ve put your money into software development and were expecting to obtain patent protection within the last 3 to 4 years (average length of prosecution at EPO), you’re stuffed

    (ii) I’m outta a job – any of you guys need a tea boy? :twisted:

  • #31501

    Anonymous

    No offence to your job but…

    woot!

    :)

    Dave

  • #31513

    Anonymous

    (i) if you’ve put your money into software development and were expecting to obtain patent protection within the last 3 to 4 years (average length of prosecution at EPO), you’re stuffed

    YAHOOOOOOOOOOOOOOO!!!!!!!!!

    (ii) I’m outta a job – any of you guys need a tea boy?

    Feck, hopefully you’re exaggerating and it doesn’t come to that!

    Do you deal with non-EU patents / non-software EU patents at your work? I’m sure some companies will still want to get US patents etc ( although hopefully they follow suit! )

    Regards…
    Mal

  • #31518

    Anonymous

    Interesting to witness how the need of the few etc.

    Yes I was exaggerating – there’s still another 20% to go at :twisted:
    …as well as an appeal which we ourselves will be lodging on the back of a recently-refused case, which purpose will be to overturn the policy with some carefully chosen political nudges in the right places. ‘Friendly’ firms throughout Europe are starting to queue up for support.

    There is one geopolitical dimension that’s being lost on you here, guys: don’t expect to see US/Jap/generally non-EU investment flowing into Europe anytime soon after that one (or intra-EU for that matter, since no pan-European protection). That is a real problem for Ireland, and the rest of Europe – and just demonstrates how short-sighted the EPO (not elected in anyway, nor an EU institution) can be. They bit the hand…

  • #31521

    Anonymous

    My opinion of software pantents is they are complete rubbish and stop the progress of the industry in general. How can you patent a non physical object? I have no problem with someone patenting an original and innovative algorithm, because that is real innovation.

    Pantents on bits of code or operators in a programming languages is just silly. We will end up with a situation where companies patent crap ways of doing things to prevent other companies who have a better or faster way of doing it, which will eventually grind technological progress to a halt.

    A software implementation is different from the mathematical method used to produce the result. If software patents are granted, then it should be for a shorter time than physical patent (eg 2-5 years, not 20)

  • #31522

    Anonymous

    I have no problem with someone patenting an original and innovative algorithm, because that is real innovation. [/quote:e990f9e610]
    What an “original and innovative algorithm” is is quite subjective however.

  • #31524

    Anonymous

    My opinion of software pantents is they are complete rubbish and stop the progress of the industry in general.[/quote:b93f381a11]

    A tad unsubstantiated and catch-all, methinks :P

    How can you patent a non physical object? I have no problem with someone patenting an original and innovative algorithm, because that is real innovation.[/quote:b93f381a11]

    How is an algorithm a physical object?

    Claims of software patents, moreover, do not relate to the software but always to its implementation in whatever tangible form (computer, memory, etc.). You can’t enforce a software patent on infringing code, only on the processing system using the infringing code.

    Pantents on bits of code or operators in a programming languages is just silly. We will end up with a situation where companies patent crap ways of doing things to prevent other companies who have a better or faster way of doing it, which will eventually grind technological progress to a halt.[/quote:b93f381a11]

    No, as a matter of fact you have severely contradicted yourself: you can’t prevent a company from doing something better or faster, you can only prevent a company from doing what is disclosed in the patent and claimed. No more, no less. If companies come with a better/faster way of doing things, they themselves have a case for a patent (and de facto a defense to infringement)!

    A software implementation is different from the mathematical method used to produce the result. If software patents are granted, then it should be for a shorter time than physical patent (eg 2-5 years, not 20)[/quote:b93f381a11]

    Many problems with this:

    (i) from the date of filing the application, it takes years to obtain a patent (3 to 4 currently)

    (ii) all the explanations why software is so different from anything else (physics, mechanical engineering, biotech, etc.) need analysing in detail, not taking at face value, and

    (ii) doesn’t strike you as odd to propose that, as a society, we should award patents as an incentive to those who develop new electronic, mechanical and chemical products, but not those who choose to develop software solutions to human needs?

    …to state but a very few.

  • #31525

    Anonymous

    What an “original and innovative algorithm” is is quite subjective however.[/quote:2f492d7e9d]

    I suppose I wasn’t specific enough, but I think you get the idea of what I mean. Like a new method for drawing a line on screen, the algorithm should be a patentable, not an actual software implementation.

    If you implement the algorithm, then you have to pay the licence fee. There is probably more than one way in code to implement a specific algorithm too.

    Real innovation should be rewarded, not things like “Oh, I’ve decided to patent emoticons”. Even though everyone else has been using them in one form or another since the late 1970’s on Usenet and BBSes !!!

  • #31527

    Anonymous

    Real innovation should be rewarded, not things like “Oh, I’ve decided to patent emoticons”. Even though everyone else has been using them in one form or another since the late 1970’s on Usenet and BBSes !!![/quote:296d7ea17f]

    Oh, puuuleeeaze – not these and Amazon’s One-Click again! We software professionals have ourselves, collectively and unambiguously, put our hand up to acknowledge many times over in many forums that there are such things as bad patents (be it software or others – it may strike you that software is but one technical discipline amongst very many others :wink: ). Just not many of them in Europe at all (and I mean not many – a few hundreds at the very most).

    But the EPC (and the respective national patent laws of member states) is well-equipped to deal with these – witness, no European equivalents to the US ’emoticons’ or ‘one-click’ patents, is there? :roll:

  • #31528

    Anonymous

    A tad unsubstantiated and catch-all, methinks :P
    [/quote:7f14bd2f02]

    Okay, I just don’t like the whole way some people jump on these IP things.

    How is an algorithm a physical object?
    [/quote:7f14bd2f02]

    When it is written on a piece of paper.

    Claims of software patents, moreover, do not relate to the software but always to its implementation in whatever tangible form (computer, memory, etc.). You can’t enforce a software patent on infringing code, only on the processing system using the infringing code.
    [/quote:7f14bd2f02]

    Then “software patent” is a misnomer, maybe they should be called algorithm patents. Also you have a problem with your terms there, define “infringing code”, is that code that looks similar to part of an example implemenation? Or code that has partly resembles a sample inmplemenation? How do you define that a implemetation or whole or part of an algorithm in one or more programming language or the compiled machine code itself is infringing. What if I implemnt a purely electronic version of the algorithm? There are still many question lawyers and lawmakers need to answer properly (and get their definitions right) before a decent software patent system can be granted with to all involved.

    No, as a matter of fact you have severely contradicted yourself: you can’t prevent a company from doing something better or faster, you can only prevent a company from doing what is disclosed in the patent and claimed. No more, no less. If companies come with a better/faster way of doing things, they themselves have a case for a patent (and de facto a defense to infringement)!
    [/quote:7f14bd2f02]

    I have heard of this situation happening to companies / programmers before I can’t rember where (possibly http://www.gamedev.net). I’m sure a small software company or individual is really going to survive a patent battle with a fat cat, even if they have invented something new. What if the new method is an adaptation of the original patent but changes certain parts of it?

    Many problems with this:

    (i) from the date of filing the application, it takes years to obtain a patent (3 to 4 currently)
    [/quote:7f14bd2f02]

    How fast does the IT industry evolve?

    (ii) all the explanations why software is so different from anything else (physics, mechanical engineering, biotech, etc.) need analysing in detail, not taking at face value, and
    [/quote:7f14bd2f02]

    Well who’s job is it to do that? Lawmakers and Lawyers usually get things wrong when they smell money and votes (Edit: okay some of them). Many could use this for political gain.

    (ii) doesn’t strike you as odd to propose that, as a society, we should award patents as an incentive to those who develop new electronic, mechanical and chemical products, but not those who choose to develop software solutions to human needs?

    …to state but a very few.[/quote:7f14bd2f02]

    It strikes me as odd that people can patent methods of education though. Education should be free and open too all members of society, no I’m not a communist, but our society uses education to keep the poor poor at the moment under the illusion that it is “free of charge”. Closed patents or limited viewing patents prevent education, how can people come up with better ways to do things if they don’t knwo the current methods used?

    No one has yet convinced me how software patents benefit the industry, I say this a professional programmer.

    Okay I don’t have time for this right now, I’ll be back later, we could have a good debate about this. Don’t have time to think about what I’m saying right now either.

  • #31529

    Anonymous

    Okay, I just don’t like the whole way some people jump on these IP things.[/quote:5723ec89b3]

    Still not with you, sorry.

    When it is written on a piece of paper.[/quote:5723ec89b3]

    But you can’t patent a piece of paper. Read your own post: (i) intangible objects should not be patented (ii) novel algorithms can be patented = ?

    Then “software patent” is a misnomer[/quote:5723ec89b3]

    Under the EPC, yes it is

    Define “infringing code”[/quote:5723ec89b3]

    Code which, when processed by a device, makes the device infringe the patent claim(s).

    is that code that looks similar to part of an example implemenation? Or code that has partly resembles a sample inmplemenation?[/quote:5723ec89b3]

    No, it is code that provides the embodiment (‘implementation’ in your words) with the same technical effect.

    What if I implemnt a purely electronic version of the algorithm?[/quote:5723ec89b3]

    What if you do? It’s useless if it’s not being processed by ‘something’, isn’t it? Then loop back up the post/thread (no pun intended :lol: ).

    I have heard of this situation happening to companies / programmers before I can’t rember where (possibly http://www.gamedev.net). I’m sure a small software company or individual is really going to survive a patent battle with a fat cat, even if they have invented something new. What if the new method is an adaptation of the original patent but changes certain parts of it?[/quote:5723ec89b3]

    How do you think several hundred patents have issued on the sole subject of mousetraps over the centuries? Do you think every single patent ever relates to ground-braeking leaps of technological progress? :roll:

    Look up Little-guy Stac’s disk compression patent (it forced Microsoft to can a whole edition of MS-DOS in the olden days), just by way of example. One amongst many, many others examples, and this is increasingly relevant in the software field and in direct contradiction to this line of argumentation: for the SME-sized softco, patents are often the only way to level the playing field some.

    How fast does the IT industry evolve?[/quote:5723ec89b3]

    Depends on the particular sector. How long is a piece of string? :twisted:

    (ii) all the explanations why software is so different from anything else (physics, mechanical engineering, biotech, etc.) need analysing in detail, not taking at face value[/quote:5723ec89b3]
    Well who’s job is it to do that? Lawmakers and Lawyers usually get things wrong when they smell money and votes (Edit: okay some of them). Many could use this for political gain.[/quote:5723ec89b3]

    I’ll tell you whose job it is to do that: the anti-“software patent” group’s job. After all, they’re the vocal minority who want all sorts of exceptions to centuries of accepted Law and practice, just because ‘it is software’. And

    I’d expect a more dignified response than the perennial “Oh, it’s the suits’ fault” – it’s not as if our ‘side’ has not taken comments from the ‘other side’ on-board, acknowledged shortcomings and maintained a dialogue to try and establish a compromise acceptable to all.

    But then again, compromise does not appear to form part of the “other side’s” vocabulary after 2 years of consultations, so wtf waste our pro bono time with obtuse persons… just as effective as p*ss*ng in a violin, tbh.

    It strikes me as odd that people can patent methods of education though.[/quote:5723ec89b3]

    Not in Europe they can’t. When-o-when are detractors of the European patent system (current and in the canned Directive) going to realise than patent law is not harmonized on a global basis, and that they should not compare US law with European law?

    Closed patents or limited viewing patents prevent education[/quote:5723ec89b3]

    I don’t know what you mean by ‘closed’. Do you mean ‘made public’, by any chance?

    If so, no such thing in europe, and no such thing in the States either since 2000. A patent application filed anywhere in the world publishes after 18 month from the priority date (the filing date) everywhere in the world (unless it has national security implications, and not many countries have legal provisions to prevent publication in the name of national security).

    No one has yet convinced me how software patents benefit the industry, I say this a professional programmer.[/quote:5723ec89b3]

    No disrespect, but that type of appreciation is better left to who owns the business you work in. They ponder and decide whether a patent is good tool for their business development or not, not you. :wink:

  • #31544

    Anonymous

    But you can’t patent a piece of paper. Read your own post: (i) intangible objects should not be patented (ii) novel algorithms can be patented = ?

    Code which, when processed by a device, makes the device infringe the patent claim(s).
    [/quote:f67328f979]

    How then is a piece of software different to a piece of music I write, instructions to produce a drawing or plans to build a house? I write a piece of music and then the music, which is written in a well defined language (musical notation). I can encode this music into many forms that an be processed by many “devices” (including a human being playing an instrument, device is defined too loosely here).

    I If I encode a piece of Music I have written as MIDI and play it through a keyboard, the music I havwe written is being processed by a device, it is therefore software and can be patented. This is just like compiling high level code to machine code, and excuting a that machine code on a device.

    How do you easily prove that a piece of code violates a patent, as if any company is going to show a competitor the actual source code to a product. How do I legally prove that this compiled machine code is violating the patent from examples of high level source?

    What about people who create free software, not just the FSF’s definition of free, but public domain and closed source free software too. They feel under direct threat from software patents because people who are for sw patents cannot give them a clear picture of how this will affect what they do.

    No, it is code that provides the embodiment (‘implementation’ in your words) with the same technical effect.
    [/quote:f67328f979]

    People who are campaigning for software patents should start to use the right terminology instead of invented their own jargon. This would make software engineers less hostile, as tehy would understand exactly what you are talking about. I am personally worried that software patents will affect the jobs and employabilty of software engineers because companies won’t be able to start projects unless their is a huge licenceing budget for patents.

    What if you do? It’s useless if it’s not being processed by ‘something’, isn’t it? Then loop back up the post/thread (no pun intended :lol: ).
    [/quote:f67328f979]

    Is not my combination of gates and logic circuits are not recieving and proceesing input and producing output according to an algorithm detailed in a software patent, is this not an embodiment of the same technical effect? What if my electronic implementation is on an FGPA, is that software or hardware then? Such a device rather blurs the lines between software and hardware.

    Do you think every single patent ever relates to ground-braeking leaps of technological progress? :roll:
    [/quote:f67328f979]

    No. Are not patents supposed to protect orignal and unobvious ideas. Adding better parts to a device for catching mice is not a particularly original idea.

    Look up Little-guy Stac’s disk compression patent (it forced Microsoft to can a whole edition of MS-DOS in the olden days), just by way of example. One amongst many, many others examples, and this is increasingly relevant in the software field and in direct contradiction to this line of argumentation: for the SME-sized softco, patents are often the only way to level the playing field some.
    [/quote:f67328f979]

    Heard that one before.

    SME: Well hello oh great Billness, your violating my companies IP.
    Very Large SW company: Prove it, do you have our source code?
    SME: No, do you have ours?
    Very Large SW company: No, but we now want to sue you because we think you copied our source.

    I’ll tell you whose job it is to do that: the anti-“software patent” group’s job. After all, they’re the vocal minority who want all sorts of exceptions to centuries of accepted Law and practice, just because ‘it is software’. And
    I’d expect a more dignified response than the perennial “Oh, it’s the suits’ fault” – it’s not as if our ‘side’ has not taken comments from the ‘other side’ on-board, acknowledged shortcomings and maintained a dialogue to try and establish a compromise acceptable to all.
    [/quote:f67328f979]

    I don’t think they are a vocal minority. You need to convince the lowly software engineer’s that their jobs and future skill development are safe. Also I think they feel you are treading on their toes without giving them a fair hearing. My main problem I see is people being restricted as to what they can and can’t do because a load of stupid patents have been granted. The “just becuase it is software” doesn’t make sense to me, what exactly is the definition of software (See music example, FGPA)?

    But then again, compromise does not appear to form part of the “other side’s” vocabulary after 2 years of consultations, so wtf waste our pro bono time with obtuse persons… just as effective as p*ss*ng in a violin, tbh.
    [/quote:f67328f979]

    I think there are some pro-patent people who refused to compromise too.

    Not in Europe they can’t. When-o-when are detractors of the European patent system (current and in the canned Directive) going to realise than patent law is not harmonized on a global basis, and that they should not compare US law with European law?
    [/quote:f67328f979]

    I wasn’t, it often isn’t made clear what is European law to ordainary EU citezens, they see hear thing in the media and they get worried.

    I don’t know what you mean by ‘closed’. Do you mean ‘made public’, by any chance?
    [/quote:f67328f979]

    Right fair enough I didn’t know that you couldn’t do the closed or limited view patents in Europe, that is a good thing. I think people are also worried when a basic system comes in here, it won’t be long before we have a mirror of the US version.

    No disrespect, but that type of appreciation is better left to who owns the business you work in. They ponder and decide whether a patent is good tool for their business development or not, not you. :wink:[/quote:f67328f979]

    Why is it better left to them? I asked why it benefits the industry, not does it benefit the company I work for. I want to know how the software industry in Europe will benefit from a software patent system.

    As far as sw patents are concerned I’m ambivalent on the whole issue. I see some good points on both sides but no one can convince me either way.

    Hopefully this post is a little more coherent, I have an awful problems getting what I mean across on online boards sometimes.

  • #31559

    Anonymous

    Very interesting discussion guys! I am in two minds about software patents, although I agree with Steph regarding US and Japanese companies staying offshore for IP R&D if they know they wont get patent protection.

    The thing is software was never originally supposed to be capable of being patented. That is clear when you look at the EU legislation. The EPO, through some VERY creative interpretation brought sofware within its jurisdiction. The lack of clear EU law on the matter meant that it was always a bit of a black art in terms of advising clients and that lack of transparency was not good.

  • #31560

    Anonymous

    How then is a piece of software different to a piece of music I write, instructions to produce a drawing or plans to build a house?[/quote:c84ca7c258]

    Because software makes the computer do something (play the music, x,y-locate drawing pixels, print the house plans, etc.) when it is processed by the CPU, not when software is written down (in that particular form, copyright protects it – remember than no two forms of IP rights can generally overlap: design right for how it looks, trademark for what it’s called, patent for how it works and copyright for much anything else).

    I write a piece of music and then the music, which is written in a well defined language (musical notation). etc. – see post This is just like compiling high level code to machine code, and excuting a that machine code on a device.[/quote:c84ca7c258]

    No. We may be (ever so slightly) at cross-purposes here: your midi file has to be processed by CPU instructions (i.e. by software), it cannot ‘self-play’ , so to speak. It is therefore not the same as “compiling high level code to machine code, and excuting a that machine code on a device“.

    How do you easily prove that a piece of code violates a patent, as if any company is going to show a competitor the actual source code to a product. How do I legally prove that this compiled machine code is violating the patent from examples of high level source?[/quote:c84ca7c258]

    If the software performs the same technical effect, which is generally some functionality or other of the hardware configured with the possibly-infringing piece of code. It is difficult to prove infringement in any field of art, unless you’re looking at *really* basic, nuts-and-bolts engineering.

    What about people who create free software, not just the FSF’s definition of free, but public domain and closed source free software too. They feel under direct threat from software patents because people who are for sw patents cannot give them a clear picture of how this will affect what they do.[/quote:c84ca7c258]

    It’s their choice to create free software: much in the same way copyright protects what they create, so does copyright protects what the ‘other side’ (closed software) creates.

    And, as most choose not to go the patent route (not that free software precludes it, note – there are quite a few open source developers that I know who use patents), this is a business decision, but they can’t expect different standards of law to apply to them just because they made a different business decision.

    And it is their responsibility to ensure that they do not infringe patents with whatever they are developing (note that the same obligation applies to developers of closed software).

    People who are campaigning for software patents should start to use the right terminology instead of invented their own jargon. This would make software engineers less hostile, as tehy would understand exactly what you are talking about.[/quote:c84ca7c258]

    Technical effect is a legal fiction (developeed over decades of case law by the EPO), which was invented by the EPO to stop “software patenting the US way” in Europe. Open Source developers (well, anti-SW patents) would do well to remember that.

    EDIT @ DeeK – software as such was never intended to be protectable in Europe, and it still isn’t. What you can patent is the hardware functionality under the control of the software – that functionality of the hardware has to be new or improved, and the manner in which it is achieved not obvious.

    So, no “creative” interpretation was ever required, only repeated iterations (refinement) of standard interpretation in the face of exponentially-growing ICT tech in the last 20 years or so. Remember that the EPC was drafted in the “data reel-tape” days, not even the 5-&-quarter FDDs ;)

    No. Are not patents supposed to protect orignal and unobvious ideas. Adding better parts to a device for catching mice is not a particularly original idea.[/quote:c84ca7c258]

    Ah, it gets clearer… BIG STEP BACK: there’s no question of originality (in the copyright/design sense) in patents (i.e. “How original!”), just novelty (“Never seen that before”) and lack of obviousness (“That’s clever!” – in hindsight).

    Look, patenting something costs a lot of money. For any technical development, unless there is an economical motivation/reason for a patent (which is why it is first and foremost a business tool), there will not be any patent. It is that simple.

    SME: Well hello oh great Billness, your violating my companies IP.
    Very Large SW company: Prove it, do you have our source code?
    SME: No, do you have ours?
    Very Large SW company: No, but we now want to sue you because we think you copied our source.[/quote:c84ca7c258]

    Vastly oversimplified and inaccurate. My example still stands and just FYI, I’m currently acting for such a SME in several jurisdictions: they’re going after the big established Co (such as Visa, MC, etc.) for infringement, and they have already scored.

    Facts do not bear your oversimplification, for the simple reason that every case turns on its facts: there’s no two cases of infringement that are ever the same (even for the same patent, but litigated under in different territories!).

    I don’t think they are a vocal minority. You need to convince the lowly software engineer’s that their jobs and future skill development are safe.[/quote:c84ca7c258]

    Erm… no: their employers need to do the convincing, and they themselves need to have a quick read-up of what the EPO situation has been, is and is likely to be.

    A hell of a lot of anti-SW patent people slammed the Directive last summer without bothering to read it and understand it: all it was doing was formulating current EPO practice into law, nothing more. It still didn’t define what a ‘technical effect’ was, and it still didn’t make SW patents @ the EPO any easier to obtain – in other words, in practical and real terms, no change at all.

    What people (software engineers?) advocating against patents have done eventually, is made the EPO recently take a political decision in complete breach of the law and its application for the last 20-odd years, which now threatens their lifelihood.

    Example: if I can’t get you to obtain a patent for what new tech you’re come up with, as you are now asking me to invest in your softco for round one or two, I ain’t paying (and I *very* seriously doubt anyone else will – and *most* certainly not foreign investment, be it from FR or DE or US or JP) – so, you can’t get investment, and your softco dies, and you’re outta job. Again, it is that simple.

    I think people are also worried when a basic system comes in here, it won’t be long before we have a mirror of the US version.[/quote:c84ca7c258]

    The European Patent Convention is 30-odd years old. The US Law on Patents is at least a century old. Basic patent systems (in terms of granting a monopoly against an invention) have been in existence for over 500 years (matter of fact, it was invented in Europe, the US just copied the legislation with their own pro-inventor tweaks, European law is more employer/company-focused).

    So what basic system is there to come here?

    Why is it better left to them?[/quote:c84ca7c258]

    Because it’s “their” money (that of “their” company), that pays for it – and it’s an expensive decision to make, particularly as patents (Softw or others) are not generally used in the textbook sense perceived by -for example- antiSW patent people, they are used a business tool first and foremost, and in all kinds of ways: to value the company, attract investors, facilitate licensing in and out and cross-licensing, improve market visibility for the products, etc, etc.

    So, if software engineers make decisions about who to buy, get investment capital from, which markets to enter when, which piece of proprietary code to buy from whom who needs their own, etc, etc. – then yeah, of course they can decide whether they need patents or not. It’s my experience, however, that guys at the coal face rarely get a look in this top-level decision making process.

    You can be all holistic and well-intended for the ‘industry as a whole’ that you want – at the end of the day, it’s not the industry that feeds you, but your employer (who may or may not need patents). No-one can speak for the industry as a whole, to my mind.

  • #31567

    Anonymous
  • #31568

    Anonymous
  • #31570

    Anonymous

    Trice damned lawyers. Sometimes they sound so convincing :(

  • #31572

    Anonymous

    Steph, you are being very articulate and active in the pursuit of your argument, which I’m sure is a good thing.
    I’m not very convinced by your points though, and I think some of your replies to pkelly are a bit strange.

    Specifically, when he says:

    No one has yet convinced me how software patents benefit the industry, I say this a professional programmer.
    [/quote:6c60e66a76]
    No disrespect, but that type of appreciation is better left to who owns the business you work in. They ponder and decide whether a patent is good tool for their business development or not, not you.
    [/quote:6c60e66a76]

    You have a lot to say on this issue Steph, and are forcefully arguing your position. I didn’t think you owned a software company, which you imply is necessary to appreciate this issue?
    Did I take this implication up wrong?
    Or maybe you do own one?
    But if you don’t perhaps you can then understand, having such a strong position on this issues here yourself, why pkelly, who works in the software industry might feel he is entitled to an appreciation of these issues?

    Besides which, even if he doesn’t own a tech company, this is a matter of what becomes law or not. Surely as a citizen, and as a European, he is entitled to an opinion on law that may be enacted, and an appreciation of it’s effects?

    If you were to argue that only the business owners should be consulted about legislative changes that would apply to a traditional manufacturing industry, I imagine the relevant unions would have a lot of say?

    Do you ask the receptionist down the hall or the office cleaner whether this algorithm or that UI variant is better for the purpose at hand?
    [/quote:6c60e66a76]

    If every special interest group in the larger society made the laws by which it was governed, do you think the system would work? I thought this was covered in political theory, or one of those other subjects legal people had to study?

    Alrite, so where does this leave me. This affects me directly as a software engineer, yet I have no say in what is going on? etc.
    [/quote:6c60e66a76]

    Though this was probably a rethorical question, of course you get a say in what goes on, pkelly, you get a vote, you get some rights to speech, you have the ability to lobby for what you feel is right.
    Besides which, thus far, it appears to be working, as Steph pointed out at the start of the thread..

    The lawyers don’t get to decide all the laws.
    Yet anyway :-)

    EDIT – Im not trying to come down on either side here, just to say that just because you don’t own the business you work in doesn’t mean you shouldn’t try and appreciate the issues, and speak out in favour of what you decide is right.

  • #31579

    Anonymous
  • #31592

    Anonymous

    as an side and on this very point, that’s why I alluded to this particular situation making life difficult for us practitionners earlier, because it is often the case that there is nothing to patent in the startup’s tech – their unique selling point is a business method (e.g. do by mobile phone what has hitherto been done by paper or PC), not a new tech with a technical effect. [/quote:ff7ac99dd7]

    It appears that you are saying here, that the new policy is bad because it makes it hard for you to get patents for companies that don’t have technology worth patenting?
    While I could see how that would be bad for you, without prejudice I would have said it was a point in favour of the new policy?

    But the client must have a patent application to secure the investment and progress the startup: this, lads and lasses, is business reality, not empirical theorising on the wisdom of patenting software in Europe or not. This “business reality” pays the employed programmer’s wages.[/quote:ff7ac99dd7]

    Equivocation?
    First you talk about how in very specific cases (all those ‘ifs’) software patents are absolutely vital to a business.
    Then you make a (seemingly general) statement about how this business reality programmers pays wages, and that as a result you have to conform to it.

    Next, what follows doesn’t seem like a powerful argument for software patents – I mean, couldn’t you make the exact same argument for any business practice, such as slavery before it was abolished? Or any business practice which was currently in place, as long as it was good for those who used it?

    So, ok, sure, a particular software company, of the type you mentioned (reliant on patents) might go out of business if software patents are abolished.

    What I don’t get is how you deduce this means the owners of the company mentioned should be allowed solely decide the software patents policy? I mean, surely they are one of the most biased parties there is?

    But that’s to give you (1) a small flavour of integers of the decision process at the business end (the ‘business case’ for a patent in any company – which is why I call it a business tool first and foremost: for a softco, it facilitates business. It puts oil in the machine. That’s it. )
    [/quote:ff7ac99dd7]

    Again, you could have made the analogous statements, for example, about trading companies and slavery. (facilitates business, oil in the machine)

    and (2) why I believe that those factors are best considered by those who decide where the business goes (that may be programmers, if thy own their business of course). [/quote:ff7ac99dd7]
    vs

    Not it isn’t (necessary to own one re. appreciating the isue)
    [/quote:ff7ac99dd7]

    Ok, you’ve clarified that it isn’t neccessary to one a company to appreciate the issue, but that you still think those factors are ‘best considered by those who decide where the business goes’.

    But your above argument does nothing to show that the factors are best considered by ‘those who decide where the business goes’.

    If we applied the same logic here to when slavery was around, and a neccessary business practice for some companies, it would never have been abolished?

    Sometimes decisisons have to be made for the good of all, and are not best considered solely by those who may profit from the outcome.

    Maybe the argument here is over whether this is one such issue. Maybe you simply feel it isn’t, (why?) and the public (or just the vocal programmers?) feel it is?

    I believe that if you are trying to say business owners should be the ones who decide this, you need to provide a very good argument for why others arent allowed a say, in something they feel effects them, and is a matter potentially concerning their future wellbeing (something most agree with whether they believe patents are better for the industry or worse).

    On another issue:

    There’s nothing to ‘become’. Software patents (misnomer, I know, but…) have been granted by the EPO for two decades. I haven’t heard of anyone squealing before the Directive was tabled. And all the Directive proposed was to formalise the practice (arisen from EPO case law, with whom apparently everyone was happy until the Directive was tabled), not extend the scope and ambit of what might be patentable or not. [/quote:ff7ac99dd7]

    Is it not the case that often the debate about an issue proper starts when it is attempted to be brought from practice into law?
    Is this point not a very sensible time to stop and debate and consider what pratice be the case? (‘squealing’ as you call it, a rather derogatory term – not to say that there aren’t dubious arguments and tactics being employed by both sides)

    As for pkelly appreciating the effects of what might become law – again, not a personal attack, he himself has clearly stated that he’s not going to read the Directive and understand the issues.[/quote:ff7ac99dd7]

    You have a point here in that to oppose something, you presumably ought know what it is youve decided to oppose.

    Simultaneously, I don’t believe you neccessarily need to read laws to have an opinion on them, or an appreciation of their effects, as you might be taken to imply there. How many people have read the laws that state murder is illegal, or have read their rights as laid out under the constitution of their country?
    Probably few, but that doesn’t mean they don’t appreciate the issues entailed, or would be any less entitled to a position if these laws were to be changed.

    Also, pkelly does make some very valid points about a lack of information being available on software patents from the pro lobby.

    Perhaps sometimes it would appear that elements of the pro lobby are more interested in by means other than by a reasoned argument?

    …as well as an appeal which we ourselves will be lodging on the back of a recently-refused case, which purpose will be to overturn the policy with some carefully chosen political nudges in the right places.[/quote:ff7ac99dd7]

    I notice how you weren’t talking about a launching a counter-campaign to educate the rank and file as to the error of their ways, but instead using other less overt means to achieve the goal.

    While I understand why this occurs, perhaps the best way forwards would be through more public debate and education over this, obviously still contentious, issue?

    Perhaps a discussion on why software patents are good or bad for the industry, the business owner, the investor, the programmer, and the citizen, is more appropriate, rather than a discussion over who should or should not be allowed appreciate what the issues are.
    Such a discussion would need to consider the merits of patents for all stakeholders, not just the very specific cases you outlined in the previous post (if a company is reliant on ip, and if its investors mandate it, etc)

  • #31593

    Anonymous

    It appears that you are saying here, that the new policy is bad because it makes it hard for you to get patents for companies that don’t have technology worth patenting? While I could see how that would be bad for you, without prejudice I would have said it was a point in favour of the new policy?[/quote:c302845dfa]

    No, I am saying that the new policy is bad because it makes it hard for us to get patents for any company involved in software development: those deserving of protection for genuine innovation (which have always had a fair, if difficult, chance of securing patent protection) just like those not deserving of protection because they’re just me-too johnny come-lately (and the law and practice already catered for these situations).

    Equivocation? First you talk about how in very specific cases (all those ‘ifs’) software patents are absolutely vital to a business.
    Then you make a (seemingly general) statement about how this business reality programmers pays wages, and that as a result you have to conform to it.[/quote:c302845dfa]

    Don’t take my comments out of context, please – the “ifs” I outlined were to provide an example of the variables involved in the decision process about patents, and are the norm for any softco after investment money.

    What I don’t get is how you deduce this means the owners of the company mentioned should be allowed solely decide the software patents policy? I mean, surely they are one of the most biased parties there is?[/quote:c302845dfa]

    I’m not deducing, it’s recounted experience. If such decisions (patents or not?) in your company or the company you work for are collegial, and the MD asks the programmers’ permission/opinion as to patents, congratulations – you’re in a very progressive company and you should look after your employer. Such is just not the norm, is all. Please stop confusing business decisions and ‘for-the-good-of-us-all’ opinions.

    I fully reject your slavery analogies, as both erroneous and actually quite abject. I quite fail to see the impact of patents on human workers and their welfare, other than in economical terms (which work both ways, btw). A patent is a legal instrument, a ‘right’ which you buy (and which you get only if it is deemed that you deserve it, mind) – slavery was human exploitation, there was no legal checks that I’m aware of that would have ascertained whether your ‘business’ (plantations?) deserved to use slavery or whatnot, and certainly no case law to dictate what was good or bad (wrong or right) about using slaves. :evil:

    I believe that if you are trying to say business owners should be the ones who decide this, you need to provide a very good argument for why others arent allowed a say, in something they feel effects them, and is a matter potentially concerning their future wellbeing (something most agree with whether they believe patents are better for the industry or worse).[/quote:c302845dfa]

    Proverbial nail on head – how do patents affect them, exactly, other than in economical terms? By your logic, the chemical or biotech boffins should likewise reject the patenting system because it makes their research harder :roll:

    Is it not the case that often the debate about an issue proper starts when it is attempted to be brought from practice into law?
    Is this point not a very sensible time to stop and debate and consider what pratice be the case? (‘squealing’ as you call it, a rather derogatory term – not to say that there aren’t dubious arguments and tactics being employed by both sides)[/quote:c302845dfa]

    Is it not the case that it is precisely what has been attempted with the Directive and all of the corresponding consultations, only to end up *repeatedly* in a dialogue of deafmutes (note that I’m implicating both sides here).

    My point is simply matter-of-factly: the system has been working fine for 20 years for all parties involved, and as we have attempted to ‘formalise it’ somewhat (to make the situation of Computer-Implemented Inventions in Europe clearer *but not changed* to
    non-EU investors, particularly US ones), then suddenly now there was a problem). So my question to anti-SW patent people is simply and justifiably (and a bit rethorically): what’s wrong with the law and practice now, that wasn’t beforehand?!? :shock:

    Simultaneously, I don’t believe you neccessarily need to read laws to have an opinion on them, or an appreciation of their effects, as you might be taken to imply there. How many people have read the laws that state murder is illegal, or have read their rights as laid out under the constitution of their country?[/quote:c302845dfa]

    It is a rather simplistic matter to determine for yourself that murder is a crime. Heck, even the Scriptures themselves said so 2 or 3000 years ago.
    It is rather more convoluted to determine what is right or wrong about a patenting system, given the countless socio-economical variables, and then particular technological niches (such as software) within that system. Your argument is somewhat simplistic.

    As a citizen, you should read your rights as laid out under the constitution of your country (or that in which you live). That’s probably why fewer and fewer people vote these days: civism is a fast-disappearing notion.

    Also, pkelly does make some very valid points about a lack of information being available on software patents from the pro lobby.[/quote:c302845dfa]

    Would that be because we (pro-SW patents) are not so rethorical as the other side and (wrongly) lend too much intelligence to the undecided element (as I have obviously realised through this thread and before: people obviously prefer pre-made positions with nicely- and clearly- laid out arguments, however wrong or assumptive, instead of doing their own thinking – How daft was I! How you must have laughed!)

    I notice how you weren’t talking about a launching a counter-campaign to educate the rank and file as to the error of their ways, but instead using other less overt means to achieve the goal.[/quote:c302845dfa]

    No, because we law practitionners believe in a due process instead. Anything wrong with that?

    Witness the EPO new policy, in the full face of the law and its application: to coin an analogy which everyone will hopefully get, that’s like Gardai stopping you and doing you for driving at 50 kph (the local limit), because some villagers have unilaterally decided that 30 kph is better and Gardai have decided that they are right – law to the contrary or not. Now, you’ve been done for driving at the legal limit – What are you going to do? Take it Court, or campaign for Gardai to enforce posted speed limits?

    While I understand why this occurs, perhaps the best way forwards would be through more public debate and education over this, obviously still contentious, issue?[/quote:c302845dfa]

    Debate has been done, and went nowhere. That’s not to say it couldn’t ever start again (I’m positive that it will soon enough, especially after the new EPO policy), just that one side has not proven willing to accept even a modicum of the other sides’ arguments, however valid and logical. That one side’s position is no SW patents, period – and no amount of discourse to date, however reasoned and civil, has even managed to get one incy-weeny-bit of assent from them. As they say, only imbeciles never change their minds.

    Perhaps a discussion on why software patents are good or bad for the industry, the business owner, the investor, the programmer, and the citizen, is more appropriate, rather than a discussion over who should or should not be allowed appreciate what the issues are.[/quote:c302845dfa]

    I didn’t launch the whole issue, actually, or well… didn’t make an issue of it, if you prefer.

  • #31604

    Anonymous

    My arguments on this whole issue are probably a little disjointed because I am young and don’t have a lot of experience.

    I just basically want the “pro-crowd” to answer my questions, without telling me to go and read a directive or claim that an open debate about the issue has already happened. Yes I should read the directive to have a fully informed opinion, but why can’t i get the list of basics if I have a short attention span or can’t be bothered to read it? As i said before, propoganda is important, and I have seen much more literature and information about how software patents are a bad thing rather than good thing.

    As Steph has pointed out there are a lot of socio economic variables involved, computer software is something that almost everyone in the (should Western go here?) world uses everyday. Any changes regarding how software inventions are protected are a big issue for not just the industry involved, but the general population as many everyday things that could be done by “hand” (Want a better word here.) are now done by computer controlled systems. It is logical to conclude that such a debate would be widely publicised in the media, so why have I not yet seen this?

    Maybe the slavery example feral used was a little crude. I think the point he was trying to make is that the clandestine (Whether itentionally so or not) approch taken by the pro crowd so far has done them no favours in convincing the other sides that this legislation/directive is a good thing.

    Steph is arguing that patents only affect people in economical terms, how so? Economical affects will have knock on affect in other aspects of their lives too, is this not a capitalist society?

    As for bringing religious examples into the debate, that is worse than slavery. We are not dicussing theology here.

  • #31609

    Anonymous

    I just basically want the “pro-crowd” to answer my questions, without telling me to go and read a directive or claim that an open debate about the issue has already happened.[/quote:609fb44ff0]

    It is very difficult to answer questions without either having to delve into specifics imposed by the question, or all of the considerations required to answer a ‘general’ question.

    Yes I should read the directive to have a fully informed opinion, but why can’t i get the list of basics if I have a short attention span or can’t be bothered to read it?[/quote:609fb44ff0]

    Allow me to give the succinct version:

    (Init :lol: )

    (i) EPC “software as such is not patentable”

    (ii) Practice for 20+ years “computer configured by the software can be patented, if the configuration results in a technical effect”

    (iii) Technical effect – never satisfactorily defined by anyone (either side)
    Best approximation: “that which makes the computer do something technically which it never could before” (so, different from calculating 2 + 2 with Excel or sending an order form to a supplier, say)

    (iv) Directive “software as such is not patentable, but computer configured by the software can be patented, if the configuration results in a technical effect”

    (v) Outcry

    End :cry:

    computer software is something that almost everyone in the (should Western go here?) world uses everyday.[/quote:609fb44ff0]

    They do so under the software EULA. Patent issues arise before the EULA stage, and (usually) only concern the developers/publishers, not the ‘general’ end user.This will of course vary with what kind of software etc. (hundreds of millions use Office, a few thousands worldwide use Flame or Inferno, e.g.).

    Any changes regarding how software inventions are protected are a big issue for not just the industry involved, but the general population as many everyday things that could be done by “hand” (Want a better word here.) are now done by computer controlled systems.[/quote:609fb44ff0]

    If the functionality of a software is only to do with a PC what can be done by hand (e.g. send an order form to a supplier), then you can’t get a patent in Europe for it – before or after the Directive. It’s called a “mental act”.

    It is logical to conclude that such a debate would be widely publicised in the media, so why have I not yet seen this?[/quote:609fb44ff0]

    Stating the obvious somewhat, but it’s not as hot as Britney’s bra size or the composition of the Brit’s World Cup team, unfortunately.

    Maybe the slavery example feral used was a little crude. I think the point he was trying to make is that the clandestine (Whether itentionally so or not) approch taken by the pro crowd so far has done them no favours in convincing the other sides that this legislation/directive is a good thing.[/quote:609fb44ff0]

    We’ve been everything but (clandestine). Rather, we’ve used legal/legit/’official’ (i) public channels and (ii) means/arguments to try to get our end, rather than disinformation.

    Steph is arguing that patents only affect people in economical terms, how so? Economical affects will have knock on affect in other aspects of their lives too, is this not a capitalist society?[/quote:609fb44ff0]

    Patents influence business, period. Whether they exist or not, software will be still be developed and used. However, the rate and extent to which it is developed and used (and distributed) will be affected. Everything after that is causality and there ain’t enough space on this php server to house the amount of bits required to discuss it that far.

    As for bringing religious examples into the debate, that is worse than slavery. We are not dicussing theology here.[/quote:609fb44ff0]

    Lighten up. feral brought the comparison with crime/murder, I only relativised it.

  • #31615

    Anonymous

    that’s why I alluded to this particular situation making life difficult for us practitionners earlier, because it is often the case that there is nothing to patent in the startup’s tech -[/quote:950bbe53c0]
    vs

    No, I am saying that the new policy is bad because it makes it hard for us to get patents for any company involved in software development: those deserving of protection for genuine innovation … just like those not deserving of protection… [/quote:950bbe53c0]

    I certainly read these as saying two different things. Is the first one wrong?

    Don’t take my comments out of context, please – the “ifs” I outlined were to provide an example of the variables involved in the decision process about patents, and are the norm for any softco after investment money. [/quote:950bbe53c0]
    I amnt sure I agree. Those ‘ifs’ really were quite significant, and Im not sure the set of companies after all the ifs is near as big as the set of all companies. You took that as implicit, and I don’t think it is.

    After you sure you aren’t basing your numbers of software firms that need to patent IP on what is perhaps a misrepresentative sample you encounter because you work in patents?
    I amnt claiming to the contrary, – Im honestly not sure – but if you have independant stats, it would be most useful. (ie, some sort of credible research that would back up the claim about how many of these SMEs would suffer without software patents).

    What I don’t get is how you deduce this means the owners of the company mentioned should be allowed solely decide the software patents policy? I mean, surely they are one of the most biased parties there is?[/quote:950bbe53c0]

    I’m not deducing, it’s recounted experience. If such decisions (patents or not?) in your company or the company you work for are collegial, and the MD asks the programmers’ permission/opinion as to patents, congratulations
    [/quote:950bbe53c0]

    I hoped I had made myself clearer than that.

    I was not talking about an individual company, and who gets the say about it’s patent policy.
    I was talking about a society that is considering enacting a law, and stating that I believe, contrary to the position you have expressed, that all stakeholders, not just the business owners, but all citizens, should be entitled to an appreciation of the issues, and a say in the laws that are passed to deal with said issues.

    Something you seem very set against, as you seem to believe very strongly that what patent law is passed is an issue for business owners alone; see my quotes in previous post.

    I fully reject your slavery analogies, as both erroneous and actually quite abject.
    [/quote:950bbe53c0]

    I guess it was abject, but surely so much the better for illustrating the error in your logic by analogy?
    I was just pointing out that just because business owners _may_ have most to lose, I dont believe that they should be the only ones who get to make the decisions, *about what laws we make that govern their businesses* or have an appreciation of the issues. Like in the analogy.

    I quite fail to see the impact of patents on human workers and their welfare, other than in economical terms (which work both ways, btw).[/quote:950bbe53c0]

    Perhaps this is where part of the problem is – a lot of free software people see patents as acting to limit their freedoms. Some would even go so far as to say it limits their freedom of expression, or their free speech, depending on how far you go.

    I amnt saying Im in that camp – but I am saying that if they believe this, if a large number of people believe their freedom is being threatened, rightly or wrongly, surely you can’t mantain your position that only the business owners should be consulted?

    A patent is a legal instrument, a ‘right’ which you buy (and which you get only if it is deemed that you deserve it, mind) [/quote:950bbe53c0]
    Is it good to be able to buy rights, as you put it?

    Proverbial nail on head – how do patents affect them, exactly, other than in economical terms? [/quote:950bbe53c0]

    One example above.
    Again, while you mightnt agree with it, that doesn’t mean you should just dismiss it.

    By your logic, the chemical or biotech boffins should likewise reject the patenting system because it makes their research harder[/quote:950bbe53c0]
    No.
    Firstly, my logic applies to software developers.
    Secondly, I didn’t say the software developers should try and reject the system. I merely objected to you saying that they should not be consulted.

    Where did I say that anyone, software developers or not, should reject the system because it makes their research harder? I would be very grateful if you could post a quote, as I cant find it.

    Finally, I guess the chemical or biotech boffins, as you put it, don’t reject the patenting system because while it might make their research harder, they accept the price because they believe the other advantages outweight it.

    They are different fields than software, and it would appear that – at least to all the software professionals against software patents – the balance of advantages to disadvantages is different too.

    And at this point the next logical place to go is a more worthwhile debate on the the merits vs disadvantages of patents.

    No, because we law practitionners believe in a due process instead. Anything wrong with that?
    [/quote:950bbe53c0]

    some carefully chosen political nudges in the right places.
    [/quote:950bbe53c0]
    I was more objecting to the ‘carefully chosen political nudges’ as not being all that due process like, or open, or honest. I would think statements like that do not encourage a trusting and frank dialog between the various sides, but perhaps Im wrong.

  • #31617

    Anonymous
  • #31620

    Anonymous

    Perhaps this is where part of the problem is – a lot of free software people see patents as acting to limit their freedoms. Some would even go so far as to say it limits their freedom of expression, or their free speech, depending on how far you go.
    [/quote:8d44864b57]

    This is a very good point vs the Biotech etc argument. A lot of people make software as a hobby, yes even now they still do, no one does Biotech as a hobby. Some see it as a labour of love and have day jobs that don’t involve IT, but make software in their free time, a lot of good engineers started this way. What will happen to them, to the communities such as the demoscene, who do use software as a form of art and expession of ideas, are you going to restrict them too? This is why software is different and this is what many people are worried about, their freedom of expression being restricted. This is the most persuasive thing for me support the status quo. Not everyone is in it for the money and you have to expect a very hostile reception if you start slamming lawsuits on people making demos, school projects or free software in their own time. You have said software patents are a business tool, by that defintion they can only be used in a commercial context. Someone who is not profiting or earning a livng from the software they write should not be liable for licence fees.

    Note: Please take the meaning of “free software” in this post not as “Open Source”, but software that is free of charge.

  • #31642

    Anonymous

    Well, I see it at the coal face. Can’t be fairer than that, can it? [/quote:9b647541d9]
    Erm, most (all?) of the software companies you do business with, you do business with because they are looking for patents or legal IP stuff.

    So, you’re impression of the percentage of software companies that seek patents is gong to be skewed. This is relevant because you frequently assert that the software industry will be hurt so badly without software patents because it is so reliant on them as it stands.

    Then we’re at cross-purposes. My point is only that business owners (or MDs… whatever) decide whether patents are good for their business, not whether patents are ‘good things in general’ (let academics debate that).
    [/quote:9b647541d9]

    But whether (software) patents are ‘good things in general’ is very much whats under debate! I initially commented on this issue because pkelly said:

    No one has yet convinced me how software patents benefit the industry, I say this a professional programmer.
    [/quote:9b647541d9]

    and you said:

    No disrespect, but that type of appreciation is better left to who owns the business you work in. They ponder and decide whether a patent is good tool for their business development or not, not you.[/quote:9b647541d9]

    I read that as you essentially saying that an appreciation of the benefits, or goodness, of patents, for the software industry, was best left to the people that owned software businesses.

    And such argumentation is fraught to begin with, since most of the hardware and software used by the free software people was patented at some stage or other and has since fallen into the public domain when the relevant patents died. [/quote:9b647541d9]
    That’s quite a claim, for the software at least. Depends on how you quantify the software, I suppose… There’s certainly ideas used in Linux, for example, but to estimate what percentage of the software they’d make up…

    Finally, I guess the chemical or biotech boffins, as you put it, don’t reject the patenting system because while it might make their research harder, they accept the price because they believe the other advantages outweight it.
    [/quote:9b647541d9]
    So, this logic does not apply to software?
    [/quote:9b647541d9]
    Well, the logic certainly applies – it’s good logic.
    But those opposing software patents would say that because *software* is *different*, the advantages of software patents do not outweight the disadvantages, and so it software patents shouldn’t be allowed.
    Seems pretty obvious to me.
    What’s important isn’t the logic, Im sure we can agree on it, what’s important is whether you believe the advantages do outweigh the disadvantages.

    So…
    what are the advantages of allowing software patents?

    what are the disadvantages?

    Erm… seems to me that FSF and Eurolinux have not been shy about lobbying politicians (Mr Rocard springs to mind), nor been honest – so, why applying the double standards now? [/quote:9b647541d9]
    I wasn’t applying double standards.
    I was pointing you *might* have been.

    I object to dubious tactics when they are used by either, or both, sides.

  • #31649

    Anonymous
  • #31651

    Anonymous
  • #31665

    Anonymous

    Just because the barriers to entry for developing, say, a video file repairing utility are inconsequential (compared to the same barriers, i.e. R&D cost, to develop a new vaccine), doesn’t mean that the barriers to entry for developing a cutting-edge image processing utility are not huge (several hundred million $ in R&D over the years). [/quote:bcc1bf9aa4]

    When you say ‘a cutting edge image processing utility’ do you mean an algorithm that can be used to process images, or do you mean a program/package, like photoshop?

    If you mean photoshop, then as I understand it, you can’t patent that, because it’s too big, too general.
    If you mean an algorithm that can be used to process the images, then I have to ask, how many algorithms really take that huge R&D effort to develop?

    Sure, some do, but usually the majority of the value in a piece of software is usually not in these algorithms but in their implementation and in the design of the software they are used in. (I would welcome common counter examples please).

    For example, if you look at MS Excel, it would be hard to pin it’s value on any one or small collection of algorithms. What differentiates it from other competing products is it’s completeness, the range of features (not any one feature, but their completeness, the way they are organised and interoperate, the UI), the robustness of the code, it’s interoperability etc.

    Now, that said, it would be pretty useless without certain algorithms, such as topological sort (I chose this because I believe there was a patent issue over this in spreadsheets at one time). But topological sort is probably not an algorithm that takes a huge R&D effort to develop – it’s pretty fundamental stuff, and while maybe not completely obvious to some skilled at the forefront of CS when it was developed, to me, is somehow too general to allow being patented.
    It’s like the Finite State Machine patent, or the One Click patent. Maybe neither would have been obvious 10 years before they were patented, but they are still too general, too obvious after.

    I don’t think the value in a piece of software, and in most good pieces of software, is the patentable bits. There are probably special purpose scientific tools, for example, where this isn’t true, but these are in the minority of software created these days.

    Most of the patents I’ve seen havn’t been useful because they protect the R&D investment.
    They have been useful, because you can get them on some of the core ideas used in your software, and then use them to stop other people entering the market, thus protecting the investment you make in non-patentable product development, marketing, developing the business etc.

    I hope the specific meaning of that point comes through:
    Im saying that often patents aren’t typically used to protect the R&D costs that went in to developing what’s patented. This cost is typically low (a few guys sitting around a blackboard for a while) compared to the cost of executing a product cycle and bring something to market.
    They are instead used to protect the corporations other investments in the product been used as a means of locking out competition.

    Now, I’m not saying all software patents are like this, but just that that’s a certainly a common use case in software development, and I’m not sure it’s in the spirit behind the system. Has this been your experience? I’m sure you’ve seen that a lot – I mean, that’s really what those investors you mention, who insist on a patent before investing, are really trying to do (they aren’t trying to protect the cost of developing the IP, because that was done before they are investing, obviously, so they are simply looking for extra protection on their future investment to grow the company – arguably this is anticompetitive)

    Another major problem with patents is the ‘landmine’ aspect of things.
    The fact that you can ‘step on’ a patent in your (commerical) code, without realising it, – because there’s a lot of stuff out there that’s patented, and because patents typically need patent lawyers to decode them – is a major problem for an SME developing new software.

    It’s somehow strange that if you infringe on a (possibly over general?) patent in your code, completely unaware of it being used elsewhere, you can potentially have your business brought to a halt by patent infringment.

    You talk a lot about patents protecting SMEs, yet these are arguably the most disadvantaged group when it comes to being able to research whether their code infringes anything (no lawyers in house) and also have the smallest armoury of IP to use to nullify patent issues by cross-licensing.

    What is most SMEs approach to patenting infringment issues? They ignore them. Both here and in the states. They do not have lawyers come in and examine their source, and certify it doesn’t infringe, because that is very expensive, and very difficult to do with any certainty.

    Oh, and they close their source, and realese no internal information or APIs and hide carefully the techniques they are using, in case some of them infringe patents that a competitor might spot.
    Patents were designed partially to allow the sharing or technology. They often have the opposite effect in software.

    I also question whether patents are neccessary to protect investments anyway. Software moves so fast. In any new field, often (not always, mind) it is enough to be the first person there with an implementation to grab the market. Often by the time relevant patents are granted/denied the market is lost or won anyway. You could argue that there’s no need for patents in many of these scenarios – the speed of the industry itself is enough of an incentive to do the R&D of the IP.

    Again, I know you will be able to produce examples that don’t fit these arguments – I’m not saying all software is as above.
    I’m not even sure which side I support, pro or against software patents.
    But I’m attempting, above, to show that some of the arguments for software patents don’t neccessarily apply to a lot of software.

    Perhaps the answer is a very tightly regulared and restricted patents system, with variable expiry times?

    Do you see any merit in the above points, Steph?

    As I stated, a freeware developer is entirely free (this is a bit akin to the fair use defense to copyright infringement) to develop his own version of this or that software, (i) if the current solution doesn’t work how he needs it to and/or (ii) if he doesn’t want to pay for it.

    The question is more “why distribute it?”[/quote:bcc1bf9aa4]

    In fairness, one person can’t really write a lot of useful software on their own. Interoperability with others code (libraries etc) is needed to do anything useful.

  • #31667

    Anonymous
  • #31676

    Anonymous

    I don’t think the value in a piece of software, and in most good pieces of software, is the patentable bits.
    [/quote:e45c78e741]
    Based on your vast and global experience of all things software / marketing / corporate, is it?[/quote:e45c78e741]

    Ah Steph, considering how humble you always are about the vastness of your own experience… ;)
    Sorry, its only an opinion, not meant to be a statement of fact, just something I’m raising for debate!

    Perhaps I put it slightly wrong.
    What I mean is that I’d guess that in a majority of software programs used today, where most of the value is, and where most of the work has went into, isn’t to create the algorithms that have been patented, but to fix the bugs, to check the customers requirements are catered to, to ensure interoperability, code quality, security requirements etc.
    I’d have said that in most cases, the IP is only a small part of the value of a piece of software.

    Of course, as I said, there’ll be counter examples, particularly in scientific programs, ones which are heavily dependant on mathematical techniques (eg crypto) etc.

    But in general, the effort to create the parts that are patented (the unique algorithm or whatever) will be small beside the effort to create the overall software.

    Just an opinion, based on my – as you so astutely pointed out – limited experience as a lawyer. :)

    Again, that’s just bias. If you stop people entering a market that you have developed through R&D, by defintion you have protected your R&D investment.[/quote:e45c78e741]

    But also you have protected you investment in sales, marketing, the rest of the software development cycle – all of which, I’d reckon, add up to more than the costs of developing the patentable bits.

    Do you think it’s good that a software patent should protect the investment made in these bits, as well as the core algorithm it was arguably designed to protect?

    I would have thought the idea was that patents would allow people make public their discoveries, their inventions, and then license them to others so they can make money to recoup their investment.
    Instead, it seems to mainly be that the patents are used to prevent others entering the new market at all.

    Along the lines of: ‘we are entering/creating a new market with this product… lets grab a few patents to establish a monopoly position’.
    Was this scenario the original intention of patents?
    Is it a good use of patents? (And to be clear, I mean good for society, not just for the guys with the monopoly position :-) )

    Refer above earlier – what if the one-click patent had been filed in -say- 1985?[/quote:e45c78e741]
    I still don’t think it would be ok. Its still too broad, somehow..?
    What do you think, actually?

  • #31707

    Anonymous
  • #31727

    Anonymous

    That was not the meaning intended – just a good-natured rib!
    [/quote:aa2a0137ea]
    Just returning the favour :)

    [/quote:aa2a0137ea]

    Indeed – it does come across clearly that you know this area in depth – even if I don’t agree with all of your logic and conclusions. If I need software patent counsel, Ill know where to look :-P

    Unless you have the IP to start from (the ‘blackboard’ rumblings, as you alluded to earlier), none of this later stuff (the specific implementation) happens. Ergo, IP underwrites all of it[/quote:aa2a0137ea]

    Not sure I agree – again, I think for many real world programs, it’s the quality of implementation that has the value, and the patents are something added late in the day to ensure a monopoly… they dont so much underwrite is, or make it valuable, as protect it against competition.

    (and runs right through it over time, in various guises – don’t forget copyright that arises for everything, from the blackboard meeting all the way to the production version) [/quote:aa2a0137ea]
    I havnt forgotten about copyright – just to be clear, Im talking about software patents and not copyright in previous posts, even if IP properly refers to both.

    It is not a matter of ‘effort’ – it is a matter or ‘invention’ (novelty, if you will).
    [/quote:aa2a0137ea]

    If an argument for patents is that they protect the R&D investment then it not being a matter of effort is quite significant.
    In other words, if the patents are not being used to protect the R&D investment [effort], because it is small compared to the rest of the effort, then that argument doesn’t hold.

    Patents initially arose to prevent the scenario wherein the inventor/his successor in title can “reap the rewards of their ingeniosity” without fear that “someone, having seen it, will make millions from it without compensating the inventor for it”.[/quote:aa2a0137ea]
    Perhaps, as software moves so fast, and as whoever is first to market recieves such a big advantage anyway, then patents aren’t needed – because the inventor can “reap the rewards of their ingeniosity” by being first to market. Also, because time to market is short (unlike in many fields), we don’t hold up innovation while the product is under development (which would be a good argument when someone invents, for example, a new type of airplane wing, that might take 10 years to bring to market – keeping the new invention secret for 10 years while its in a lab would slow things down).

    What I have tried to explain over the last few humongous posts, is that it’s not such a black-and-white affair…but countless hues of grey. [/quote:aa2a0137ea]
    I see it as a grey issue too. I see merits and disadvantages to both, and while I’m arguing the anti patent case here, Im not convinced 100% either way, unlike perhaps some of those arguing on both sides.

    Do you not realise that you can’t do one without the other? As the “guy on the other side” (the competitor), why on Earth would you need to take a license if there’s no patent? Just copy ahead![/quote:aa2a0137ea]
    I may have come across wrong there – I was saying that I thought the purpose of patents should have been to make public discoveries, and then license the patent, but that they seem to be more used to get monopolies.
    Perhaps patent holders should be forced to license their patents for some arbitrated amount? This might achieve the textbook goals you stated above, while also preventing monopolies?

    Now, if there’s a patent, either the patentee wants all the market to himself (he’d be dumb, in busines terms, tbh)[/quote:aa2a0137ea]
    I can’t agree with this general statement.
    Sometimes it would make more sense to get a long term monopology in the new market, using your IP, rather than licensing and possibly get beaten on implementation.

    Yes. Otherwise, no publication of the invention = everything ‘tech’ remains trade secrets and do not get impoved upon/circumvented by the competition for them to gain a further commercial edge. Progress inexorably slows down, because more and more resources are required to reverse-engineer ‘tech’ instead of just reading up the patent spec, which take time and a load of dosh – so ‘things’ get more expensive and ‘generations’ of things take longer to be developed, etc, etc.
    [/quote:aa2a0137ea]
    Yeah, but isn’t the current state of affairs, where everything is kept secret in case it infringes someone elses patent, (I believe this is one reason for keeping source closed, when it might otherwise benefit everyone to open it?) also quite bad? I referred to this earlier – sometimes the threat of patent litigation encourages businesses, particularly SMEs, to be secretive.

    Anyway, I think I’m coming to the end of the points I have to explore or contribute to this matter… and a long discussion it has been! As always Steph, it’s an educational experience – maybe there’ll be someone else along to take you up on this next !
    Hopefully I have, like the others on the thread earlier, provided some points that you can see some merit in, and maybe help understand why there are concerns over whether software patents are a good thing for the industry as a whole.
    Or not… ;)

  • #31740

    Anonymous

    If an argument for patents is that they protect the R&D investment then it not being a matter of effort is quite significant.
    In other words, if the patents are not being used to protect the R&D investment [effort], because it is small compared to the rest of the effort, then that argument doesn’t hold.[/quote:2bdc57267f]

    But that was your argument! Or have I missed something along the way? :?

    Perhaps patent holders should be forced to license their patents for some arbitrated amount? This might achieve the textbook goals you stated above, while also preventing monopolies?[/quote:2bdc57267f]

    This can be done in pretty much every industrialised country if the patentee is unduly affecting the market by not licensing (i.e. if he’s not meeting market demand by unduly maintaining a stranglehold on monopolised supply). Ample legal provisions (within Patent law) for this. In Ireland, the UK, France, Germany, the US, Europe…

    Just like the opportunity (amply used by businesses) to oppose a recently-granted European patent (and maybe having it go poof! altogether) – it’s not something which the anti-SW patent shouts much about (refer my earlier ramblings about making use of established and working legal procedures, instead of just “propaganding”)

    I can’t agree with this general statement. Sometimes it would make more sense to get a long term monopology in the new market, using your IP, rather than licensing and possibly get beaten on implementation.[/quote:2bdc57267f]

    And sometimes not…side/flipside…black/white…etc.

    Remember: shades of grey. There is one system for all fields of arts and business situations. It has to be flexible enough to cater for all – no matter when it serves and when it dis-serves (and don’t forget the ever-changing nature of business: what was useful yesterady for a deal may be another deal breaker tomorrow).

    Yeah, but isn’t the current state of affairs, where everything is kept secret in case it infringes someone elses patent, (I believe this is one reason for keeping source closed, when it might otherwise benefit everyone to open it?) also quite bad?[/quote:2bdc57267f]

    Doesn’t make any difference. My experience of litigation is that if the effect is the same (what the software makes the hardware do), you can keep it all closed that you want – the Judge is still gonna nail your @ss to the barn door.

    Hopefully I have, like the others on the thread earlier, provided some points that you can see some merit in, and maybe help understand why there are concerns over whether software patents are a good thing for the industry as a whole.[/quote:2bdc57267f]

    I have enjoyed this much. It doesn’t detract from the fact that my OP (from which we have veered somewhat drastically) is in relation to the unfairness to businesses (not so much me – I can still work on improved mousetraps or manure-spreaders anyway!) who have invested int he proces for whatever reason, and are now being held hostage entirely arbitrarily.

    I have also noted your points with interest, and hope that I’ve provided not-too-biased replies throughout (patents are my game, yes, but my points have been grounded in business reality, not coding reality or a hypothetical socialism for all things ‘code’) :wink:

  • #31769

    Anonymous

    But that was your argument! Or have I missed something along the way? Confused [/quote:69b9dc8e2b]

    I believe you said that one good reason for patents is that the protect the R&D investment.
    If they aren’t used to protect the R&D investment, but mainly subsequent investments, the argument that patents are good because they protect the R&D investment doesn’t hold.

    Dont want to get back into the details, but I hope that clarifies my reasoning. :)

    This can be done in pretty much every industrialised country if the patentee is unduly affecting the market by not licensing (i.e. if he’s not meeting market demand by unduly maintaining a stranglehold on monopolised supply). Ample legal provisions (within Patent law) for this. In Ireland, the UK, France, Germany, the US, Europe… [/quote:69b9dc8e2b]
    This I did not know. It’s good to hear that a patent can be forced to be licensed in case of an uncompetitive or exploitative monopoly.
    I would be surprised, but very happy, if this area of patent law was one which was enforced sensibly, even in the US, where they seem to do a lot of patent stuff.

    And sometimes not…side/flipside…black/white…etc.
    Remember: shades of grey. There is one system for all fields of arts and business situations. It has to be flexible enough to cater for all – no matter when it serves and when it dis-serves (and don’t forget the ever-changing nature of business: what was useful yesterady for a deal may be another deal breaker tomorrow). [/quote:69b9dc8e2b]
    Yes, I havn’t forgotten the shades of grey :) I thought you made a general statement that it would always be smarter for a business to license rather than monopolise – I was saying I couldn’t agree with that assertion (and not just in pathelogical cases either).

    Doesn’t make any difference. My experience of litigation is that if the effect is the same (what the software makes the hardware do), you can keep it all closed that you want – the Judge is still gonna nail your @ss to the barn door. [/quote:69b9dc8e2b]
    Yes, assuming it becomes known you have infringed, you can get nailed for it, that makes sense.
    But competitors have to somehow get some sense you have infringed first.
    So softcos close their source to minimise the external knowledge of which algorithms and approaches they use, thus minimising the chance a competitor can accuse them of patent infringment.
    If you have to reverse engineer your competitors software to find the patent infringment, its a lot harder than just looking at the source. And again, many SMEs cant afford to pay for their code to be certified patent infringment free (this is a severe task at the best of times), so to minimise their exposure to a claim, they hide everything, wont reveal the techniques they use.

    The reason I brought this up is it seems to be contrary to one of the frequently stated arguments in favour of patents – which is that they promote the sharing of new techniques and innovations, rather than promoting a culture of secrecy.
    Perhaps there are times when a company that would share and discuss it’s technology, will not, because they are worried about possible patent claims (which they dont have the resources to guard against). This would not be good.

    I have also noted your points with interest, and hope that I’ve provided not-too-biased replies throughout (patents are my game, yes, but my points have been grounded in business reality, not coding reality or a hypothetical socialism for all things ‘code’) Wink[/quote:69b9dc8e2b]

    Everyones perception of business reality is, of course, different, and it’s always going to be a stretch to claim one’s points are grounded ‘there’ in some meaningful way.

    I must point out, after that statment, that you come to this issue – at least partially – from a legal perspective, and while that obviously gives you a very good understanding about certain business issues – especially to do with IP – it also biases you in favour of a world where patents are important (as you have acknowleged before).

    It’s always very important to be careful when dismissing someone’s arguments because of what you think there perspective is – unfortunately perhaps this happens too much in the software patents debate before hand – some anti swpat people may dismiss pro arguments because they seem them as coming from the suits, rather than on merit, and vicea versa.

    Additionally, I don’t believe I’ve ever claimed here to buy into the “hypothetical socialism for all things ‘code'” as you describe it. I do acknowledge that there are strands of this sort of ideology running through the anti-software patents lobby. I did mention some concerns those in the free software world might have about patents, (freedom of expression etc) but I did so to provide examples of why people may have differing opinions about patents, rather than because I subscribe to those particular concerns.

    I also wouldn’t say that the anti software patents ‘side’ is exclusively made up of people pushing this perspective, as you maybe sometimes imply?
    I believe there are many there who believe that patents are generally bad for the software industry in europe, from a business point of view.

    It’s these complex issues I was looking to explore here, and it has been very enlightening to talk to someone who comes from an interesting perspective on them, so thanks :)

  • #31867

    Anonymous

    Software not patentable in EU

    http://uk.news.yahoo.com/060524/152/gchum.html

  • #31878

    Anonymous

    Is this what your original post was in reference to, Steph?

  • #31995

    Anonymous

    Not quite, but it might go some way to explain the EPO about-face.

    So far as I know, the ‘Community Patent’ is still vapourware anyway (and has been such for the last 15-20 years).

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