28 July 2008

EPO Wins Patent for Jesuitical Casuistry

Wow, there are some clever bunnies up at the EPO these days. Try this for size:


Relying on a well-known and widely used definition, a computer-implemented invention is an invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program. The term software, on the other hand, is ambiguous. It is generally understood as the implementation of an algorithm in source or object code, but without distinguishing between technical and non-technical processes.

As with all inventions, computer-implemented inventions are patentable only if they have technical character, i.e. solve a technical problem, are new and involve an inventive technical contribution to the prior art.

Right, so let's just go through that.

As the EPO says, software does not distinguish "between technical and non-technical processes". The reason it doesn't distinguish is because it is a completely factitious distinction: it doesn't exist. Software is just a bunch of algorithms working on data, outputting data; it doesn't solve "technical" problems, it solve mathematical ones. Software is mathematics.

But that's a bit of issue for the EPO, because that would mean that it could never, ever give patents for anything even vaguely software-ish. To get round this, it invents a mystical essence called "a computer-implemented invention", which is basically hardware plus software, with the magical property that the addition of the hardware makes the software patentable, even though the software is still inputting data, applying a few mathematical algorithms, and then outputting data. But to do this, the EPO has to dismiss that embarrassing concept known as "software" as "ambiguous" - by which it means "awkward for the purposes of its arguments".

You can tell that the EPO is not really convinced by its own logic here, since it goes to make the following emotional appeal:

Try to imagine a world without mobile telephones, refrigerators and washing machines, DVD players, medical imaging (X-ray, NMR), anti-lock braking systems (ABS) for cars, aircraft navigation systems, etc., etc.

We take many of the above items for granted in our everyday lives. Still, we realise that they contain highly complicated components. And, indeed, they all make use of computer-implemented inventions, frequently implemented by software. Nowadays such inventions can be found in all fields of technology, and in many cases the innovative part of a new product or process will lie in a computer program. Our lives have been immeasurably changed by these inventions and the benefit to individuals and society is enormous.

Think for a moment how much effort and investment has been put into the development and commercialisation of these products. Then ask yourself if the innovators would really have made that effort if they had not expected to benefit economically. Finally, ask yourself if these same innovators would have invested all the money and resources required to develop new or better products without the possibility of patent protection. The reality is that many important innovations have reached the market place with the help of the patent system.

Now, of course, what's really interesting about this argument is that it's been used before:

As the majority of hobbyists must be aware, most of you steal your software. Hardware must be paid for, but software is something to share. Who cares if the people who worked on it got paid?

...

One thing you do do is prevent good software from being written. Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?

Bill Gates wrote that in 1976, never dreaming something like free software could not only exist, but thrive to the point of underming his own company. And so it is with all these wonderful inventions.

Today, more and more companies are routinely making available precisely this kind of system and embedded software as open source; patents are completely unnecessary to encourage this kind of innovation, and the EPO's argument here, as elsewhere, is specious. Indeed, it is downright wrong-headed: it is becoming clear that the best way to promote innovation and provide benefits to society is to make information freely available so that others can extend your work unhindered.

And so the argument for "computer-implemented inventions" fails both at a theoretical and at a practical level: such patents are worse than unnecessary, they are impediments to innovation and progress (as, most probably, are *all* patents.)

But I have to say, the EPO would have made fine Jesuits.

4 comments:

plh said...

“But I have to say, the EPO would have made fine Jesuits.”

Except that I doubt the Jesuits would['ve] approve[d] of the use of such hilarious sophistry in justifying the facilitation of legalised theft and extortion:

http://legal.european-patent-office.org/dg3/pdf/t030424eu1.pdf

http://tronche.com/gui/x/icccm/sec-2.html#s-2.6.2

glyn moody said...

Outrageous, especially this bit:

"The claimed method modifies the internal operation of a computer system and is therefore technical."

Whaaaaat? That basically means every software technique can be made technical....

plh said...

Yes. That decision came out not long after the CII Directive was beaten off and I took it to be a two-finger salute from the EPO et al. But since it's also a very good example of a 'pure' software patent; clear evidence that we and the MEPs were lied to*, and a theft-by-patent of something originated in FOSS to boot, I was very surprised and disappointed that the FFII didn't make more of it.

*By that time I'd come to expect such underhand behaviour from the EPO, Commission and various Patent Attorneys etc. but I remember being shocked that the UKPO would sink that low too:

“One more fascinating answer (from many) -- the UK PO now denies that
granted EPO patents (such as the Webshop) are any guideline as to how the directive might turn out. According to the UK PO's Peter Hayward, a group of examiners at the EPO decided to stop applying the Art 52 test entirely to software and business methods, over a period of two to three years, from which patents are still coming out; but that this practice has now be caught and stopped.

Again, on the record, from the UKPO.” --James Heald (on UK-parl after the December 2004 meeting with Lord Sainsbury and UKPO representatives at the DTI).

glyn moody said...

thanks for the background. Clearly we still have a big fight on our hands....