The Fellowship / Fellows / ciaran / Ciarán's free software notes

Ciarán's free software notes

Ciaran O'Riordan's irregularly kept software freedom journal

Limit entries displayed: [ 2 ] [ 4 ] [ 6 ] [ 8 ]

Why European software patents are legally invalid

ciaran

Montag, 13.Oktober 2008

about: swpat , swpats

The European Patent Convention generally defines whether ideas in a domain are patentable or not. The pertinent part is Article 52 which says:

"Patentable inventions

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such."

So "programs for computers / shall not be regarded as inventions / as such".

In the 1990s, the European Patent Office created a bizarre interpretation whereby "as such" is a reference to "as programs for computers", and thus the exclusion can be completely ignored if the patent application uses a name other than "programs for computers" for the claimed idea. So if I have an idea related to a program for a computer, and I want to patent that idea *as a computer implemented invention* then that's no problem. The exclusion is thus a mere formality with no substance, according to the EPO.

Which invites the question: if the drafters intended the exclusion to be meaningless, why did they bother adding it? Of course, the EPO's interpretation isn't at all what was intended.

A second obvious problem with the EPO's interpretation is that it doesn't just render meaningless the exclusion of computer programs. It renders all the exclusions meaningless, so games, doing business, scientific theories, "rules and methods for performing mental acts" (yes, ways of using your brain), and all the other things listed in Paragraph 2 of Article 52 should be patentable. Which is completely absurd.

Unfortunately, a UK appeal court has recently upheld this bizarre twisting of patents - and that article mis-reports the patent dangers as "protection" for software developers.

EU states to discuss Internet filtering

ciaran

Mittwoch, 08.Oktober 2008

The French government is likely to lobby the other EU member states to support disconnecting people from the Internet without a court case. The French government first tried to convince the European Parliament (EP), but that backfired and the EP adopted a text (amendments 138, 166) stating that a judicial process should always be necessary (Sept 24th). Then Sarkozy sent a letter (Oct 3rd, page 2 paragraph 1) to the European Commission asking them to reject the EP's amendment, but the Commission has rejected Sarkozy's request (Oct 7th).

So the remaining option is for Sarkozy to convince the other EU member states to oppose the European Parliament's amendments. The EU member states form the European Council, and they have the power during the current stage of the EU legislative process. So letters will have to be sent to the relevent minister in each national government regarding this issue.

This isn't a direct threat to free software, but Sarkozy's proposal is to give control over Internet connections to the Music industry. Internet connections are important for free software users and developers, and the Music industry is practically always our opponent on legislative issues.

More information can be found at: