Talk: Software patent

I'm concerned that this bullet is inaccurate, since if you read the court's decision, the patent does not cover web hyperlinks. Stephen C. Carlson

British telecommunications patent #4,873,662 on web hyperlinks, filed in 1976 and granted in 1989. This, in spite of the previous invention in 1945 in the landmark paper As We May Think, as well as work on hyperlinks in the widely-known project Xanadu starting in the 1960s.

Doesn't this misunderstanding demonstrate the problem with this debate? The patent owner can claim what he wants, but it's up to a court to back him up. In this case, sensibly, the court told BT to get stuffed. There are far more of these sensible patent decisions that go unreported - only the crazy ones get talked about and they usually get reversed on appeal anyway.--Baggie 08:42, 10 May 2004 (UTC)

Using wikis to create a source of prior art

Wikis are a remarkable way of sharing and archiving information, because anyone can instantly add to the page the instant an idea pops into their head (as I am doing). Somebody should set up a Wiki where users post any software-related idea they have.

Not only would this be a wonderful resource to programmers, it would be a great source for prior art. If accused of infringing upon some patent, the Wiki would allow you to show that the idea is obvious to at least one other skilled in the art, and if they actually implemented it, they could link to that, and you could prove that what you did has been done before. Most things have. --Tcfelker

Setting up a wiki is simple, I can do that for you. But are you willing to spend time to promote it and fill it with content? --Eloquence 06:24 Apr 7, 2003 (UTC)

Well, I have time, some content, but no bandwidth or money.

I'm doing a (11th grade) report on software patents and found this. One of the reason people objected to the patents was that since before 1995 or so, there were none, so patent searches weren't enough to turn up prior art, and obvious things got published, and indivuals have a hard time fighting companies. And it occured to me how much easier it is to publish in a Wiki than to publish a patent.

Really, I'd just be brainstorming what content to put there. I guess just any idea somebody has that's not implemented, or pointers to implemented software that uses some novel idea. Being able to see (and prove?) the revision history would be essential. Does it have to be implemented to count as prior art?

Another interesting benefit - fighting the stereotype of OSS as being non-innovative, as well as a place for someone looking for a project to go.

--Tcfelker 21:12 Apr 7, 2003 (UTC)

"...can I use this website as prior art" is a difficult question. It mainly depends WHO is behind that Website. Currently there is not enough case-low in this respect. The main point is, how do you prove, that the content of the webpage was not added with a falsified date to attack a patent... The only site i currently would consider as a verificator for prior art is www.archive.org Fantasy 21:24 Apr 7, 2003 (UTC)

Yeah, a big difficulty is that the dates would have to be provable in court. I wonder if there's a cryptographic way prove that something happened on or before a certain date.

--Tcfelker 21:39 Apr 7, 2003 (UTC)

The best (and probably the only) way is to have an independent third party. www.archive.org is something similar. Like in real life: You go to the notary if you want to sign a important contract. Fantasy 06:45 Apr 8, 2003 (UTC)

If you just want to deal with software patents, you could use the infoAnarchy wiki or the OpenFacts wiki. OpenFacts is based on the Wikipedia software. --Eloquence 06:54 Apr 8, 2003 (UTC)

The mention of EDRi (European Digital Rights) as supporting software patents is completely wrong. Please see, e.g., EDRi's newsletter EDRI-gram, No.1, 29 Jan 2003, available online at [[1]].

Source for pro software patents party

Source for Party of European Socialists being pro software patents? --Ann O'nyme 07:00, 31 Aug 2003 (UTC)

No: Arlene McCarthy is the key person, also mention the European Internet Foundation (http://www.eifonline.org) a corrupt parliamentarians organisation.

Around two thirds of the PSE MEPs voted against McCarthy and in favour of real limitations on software patentability. [2]

-- Pde 03:24, 7 Nov 2003 (UTC)

Need of a major overhaul

I think this page needs a major overhaul. First a clear definition of what is meant in real life by the expression "software patents" should be stated. The first sentence is unclear and rather narrow: "A software patent is a patent which can be infringed purely by software". Unclear since: Infringement can occur only through an action (i.e. in most jurisdictions: making, using, selling, offering for sale, or importing the patented invention - see patent page), software is not an action, but an organized collection of code representing instructions to be executed by a computer (see software page). Rather narrow since: What software patent actually refers to can be really much broader and this point should be stated somewhere, it is a key to understand why there is so much fuss about software patents these days. I propose to change the definition to "Software patents refers to patents that have been granted or could be granted on products or processes which include or may include software in order to be implemented, i.e. used to produce the effect it intends to provide." Well, I'll be bold and change it. Let me know your opinion. --Edcolins 15:19, 28 Mar 2004 (UTC)

You've got to love that directive. I think there was a slight problem with the definition in that if something could have a tiny piece of software in its implementation, it fell under the definition. I tweaked the definition slightly to add that the softwae had to be a significant part of the implementation. Hope that doesn't deviate too far from your idea. I otherwise agree with you that the page could use some work Steven jones 00:09, 29 Mar 2004 (UTC)

You're right, thanks, the software should be a significant part of the patent otherwise it is not really a software patent... but "significant" is kinda subjective (in some of its meanings at least). I've added "or at least necessary" since a patent may claim a long process with a small software part to achieve something at one stage, this small stage may be insignificant, i.e. small in size in comparison to the whole process, but still be absolutely necessary to implement the entire process. In the case of such a process, the issues at stake when discussing software patent also apply.--Edcolins 19:02, 29 Mar 2004 (UTC)

Neutrality

I have to say I'm concerned about the point of view of this article. Not only does it continually lean towards the anti-patent side, the use of bold text is rather unorthodox; it's rather like opening a text encyclopedia and finding someone's highlighted key parts of an article. It's distracting, and IMO, keeps the reader from forming their own point of view. Radagast 22:00, Apr 24, 2004 (UTC)

I must admit I agree. I have to declare an interest (I'm a European Patent Attorney) but I think the fact that I'm qualified in this area of law should back me up rather than being something to beat me with.

My view is that the position being put forward by the European Parliament goes way beyond what was intended when they started their review. The reason that the EuParl got involved was that different countries of the EU had different legal positions - i.e. you could get a patent in one country that you couldn't in another. This lack of consistency is a potential distortion of the Internal Market. However, the sting in the tail is that the EuParl has now moved the goalposts of their review to take in the question of whether software patents are really within the scope and spirit of the law, and whether they are politically acceptable.

I must say that I am amazed to see someone claim that Arlene McCarthy is pro-software patents. You could have fooled me. Software is an article of commerce, and those who endeavour to do something useful, and valuable enough that others will want to buy it, should be rewarded for their innovation with a patent. I can't see any difference between that and someone who invents something mechanical, chemical or pharmaceutical. Why should a small business who invents something neat be penalised just because their product happens to be software implemented? I've heard the counter argument that software patents benefit big business (by which I suppose people mean Microsoft and IBM) more than small, but isn't the same true of the Pharmaceutical field? The roof hasn't fallen in.

Unfortunately, the debates in the EuParl and McCarthy's reports, both of which I followed, were pretty inept and failed to make any sensible exploration of this point of view. The debate seemed to rest on the fact that the opponents of computer related patents, some of whom are a pretty unattractive bunch, shouted loudest. The consolation will be that the Commission may just tear the whole thing up as the EuParl has made such a pig's ear of it.--Baggie 08:36, 10 May 2004 (UTC)

Baggie: Since you appear to be pro-software patent, it might be useful if you contributed to the article. I believe the article is so heavily anti-patent because it has been written by anti-patentists. Though I'm also an anti-patent activist I hate to see such a biased article in wikipedia. Unfortunately I'd expect far more anti-patentists to be wikipedians than pro-patentists, so it's hard for such an article to be neutral. --Antonios Christofides 19:12, 29 May 2004 (UTC)

Baggie: You missed the point. The question is not what makes software different. The question is whether the application of the legal instrument patent law is also justified for software development where developers do not request patent protection but live under a damokles sword of crappy patents from players alien to their market. --Anonymous contributor.

Three categories are crap

An anonymous user wrote: The three categories are crap from a legal perspective.

Well, from a legal perspective the term "software patent" is simply undefined. So the three categories are very helpful to understand what hides under the vague expression "software patent". The three categories are not crap at all from a legal perpective. A lot of misunderstanding going on about software patents (especially in Europe) come from the facts that many think they know what software patents mean, but cannot make the difference between unpatentable subject matter (e.g. in third category) and patentable subject matter (e.g. in first category). --Edcolins 19:45, May 31, 2004 (UTC)

Facts

I am also anti-patent (not only software-patent, but most patents). However, I nevertheless try that this opinion does not interfere with the factual truth of what I have written here. I have written the parts that state the problem of small businesses and individual developers with patents. I am a small business owner in the computer industry. I am also a student of law. Therefore I just tried to stay with the facts, even I have to agree that I did not find a lot of facts that would say that small businesses have advantages because of (software)patents. Therefore I challenge everybody if they know some to add them to the text, or give them to me and I will integrate them.

I don't want my text be religious to my opinion. I want it stay on the facts.

Txwikinger 23:41, 31 May 2004 (UTC)

Extent of the changes needed

I'd be pleased to contribute to this article, but unfortunately, I think that the extent of the changes that I think I'd want to incorporate would be too great for some to swallow. I have no interest in alienating further those who have a fundamental objection to 'software patents'. As you may have gathered, my main concern is that there is no clarity as to what a 'software patent' is. The definition at the head of this article adds no clarity - almost every information processing invention will fall within one of these categories, and it would be odd to tar all of these with the 'software patent' brush. Thus, the premise on which this article stands is itself decidedly shaky.

Thus, I'd not consider myself a 'software patent' proponent, as I'm not sure that you can be for or against something whose nature cannot be defined with certainty. My main position is that we need a patent system that acts across all technologies substantially uniformly. The more complex we make the patent system, the more distant it will be from the ordinary punter and big business will monopolise the process even more than it does now.

Some have said that software patents could be shorter in term, or perhaps have more limited enforcement rights than other types of patented technology. 'Software related inventions' (however you define them) should not be treated differently from other inventions. As a patent attorney, you might consider it odd that I would advocate a simpler system and thus one less likely to generate me additional fees, but I'm concerned that adding further definitions to the law and singling out a special class of inventions for special treatment would not lead to a open system that some advocate. Instead, one would arrive at a situation where patent applicants concerned that their invention might fall within the scope of some artificial and cooked up definition of a 'software based invention' would work to avoid the definition and thus get the full treatment of a non-program based invention. The larger businesses would inevitably be able to afford the best representation, and would thus be most able to avoid legal exclusions presented in their paths. It is no surprise to me that some of the seminal cases in the European Patent system relating to the protection of computer program based products were on IBM patents - a little guy wouldn't have had the resources to fight through to a successful conclusion. My feeling is that by reducing the exclusions to patentability, and having a sensible set of tests that all inventions must pass in order to be granted patents, we get to where we want to be - a system that rewards real innovation while rejecting the merely frivolous.

My final point at this time is that I truly acknowledge and understand the concern from those who work in the IT business relating to this area of the law. Let me make myself clear. You are not alone. An independent consultant researcher in the mechanical or pharmaceutical field also runs the risk of infringing a patent that one of the big guys may have obtained. Unfortunately, that's life. If you use something that someone else has patented, they can sue you. I'm not sure they should have to apologise for that. What is perhaps different about your business is the preponderance of very small operators, alongside the megacorps. With a few exceptions which always prove the rule, these big guys are not out to get you - they are usually patenting to defend themselves from their direct competition. If you become their direct competition then they may use all of their power to squash you, and that might include patents, but I would have thought that pricing and marketing would be an equally effective tool. On the other hand, if you do invent something neat, I'd suggest applying for a patent as this can at least give you a bargaining tool against a big corp - you could even sue them if you're properly insured. They are terrified of appearing the corporate bullies and would think twice before coming down heavy as you could go to an already sympathetic press.

I feel better now.--Baggie 07:59, 1 Jun 2004 (UTC)

This is the theory outside the software world. I suggest you take a random sourceforge project (hmm, how about mediawiki? ;-) ) , and see if that program is actually even practically viable under current U.S. law. The question is, do we really want to see a similar system in europe (or even at all)? This is what the european parliament decided on. Kim Bruning 12:07, 20 Sep 2004 (UTC)

Although I am personally strongly opposed to software patents, I would like to comment that this article is in serious need of a rewrite from a Neutral Point of View. I mean, a section Manipulative resources? There is a lot of good information in this article, but it needs a rewrite from someone who is an expert in the field - not me, unfortunately. Dan Gardner 15:29, 26 Jul 2004 (UTC)

The article is written from an extremely anti-software patents perspective and indeed links to articles which are out of date and itself refers to issues in patent law that are largely resolved. For example, the United States had a particular problem known as Submarine patents.

Until recent changes in US patent law, patent applications were not published 18 months after filing as was and is the case in other patent systems. As a result, by deft filing of Divisionals, Continuations and CIPs followed by abandonment of the original application, a patent applicant could keep a patent secret for decades, allowing to surface as a patent only when an industry using the technology had evolved. Typically, the applicant also used the CIP process to steer the claims in the direction of industry trends. Further complicating this activity was the fact that US patent terms were measured from the issue date of the patent rather than from the application date. The most notorious user of submarine patents was Jerome Lemelson, who with patents that appeared to cover bar codes, extracted over one billion dollars in royalties before being found unenforceable and indeed not enabling. This problem was solved by aligning the US with the rest of the world, PUBLISHING PATENTS APPLICATIONS at 18 months. Yet the article gives the impression that the publication requirement exacerbates the submarine patent issue rather than largely solving it. Such an approach is that of someone who either does not know the subject, or is trying to spin facts to suit their argument. There are numerous other examples of this problem.

Having worked in IP intensive industries (fair disclosure I am an IP lawyer), the problem of technology being 'ripped off' as soon as cost recovery occurs is an acute one. The issue is how to address this problem. Realistically, if an investment in IP (i.e., paying programmers a paycheck in this instance) cannot be recovered, we might as well all go fish (using an out-of patent reel and bamboo rod.) The question becomes how much protection is necessary to make the investment in developing IP viable. Copyright as a form of protection for software presents significant difficulties, especially its extraordinarily long term, which means that under present rules, software written for say ENIAC, could still be under copyright. Another issue is that all that need be publsihed is the object code -- source code is not required to be disclosed, a fact which creates problems such as access to APIs. Why does this problem exist -- well the main issue is stretching a form of protection designed to help struggling writers, painters and composers heat their garrets in their old age to cover the products of large industrial software companies. Hence 70 odd years or protection for products whose commercially important life is, usually, at most a decade.

In some respects patents, at least in principle should be better than copyright -- they do for example require enablement, which might mean that some API's would be disclosed; patent terms are also much shorter. Since patents cover ideas and not expression, taking an idea rather than slavishly copying code can also be addressed. The downside is that patents and the patenting system was designed around areas of engineering and scientific endeavour where technical boundaries are cleared than software and where broad taxonomies of knowledge already exist.

One view that is expressed is that perhaps software needs some 'sui generis' form of protection, crafted to suit the interests of the public and the interests that need to be protected rather than stretching concepts from copyright, know how law and patents to cover it. Certainly, this si waht the EU chose to do with database protection (not debating the outcome). This outlook (which I do not necessarily endorse) is that we are stuck with intellectual property forms, patents, secrets, copyright, trademarks that were in principle lergely established two centuries ago, to cover the technological world of that time -- perhaps new tech, new IP system. The view also sees a world where some sort of IP protection for commercial software is necessary and will of necessity happen. If this is the case the current "four legs good, two legs bad" debate will fail. Much better would be for those who think software patents as they now stand to be a mistake to propose something else.

In doing so it is necessary to acknowledge the immense inertia resulting from the TRIPS. Put simply, the Uruguay trade round was many years in negotiation and the TRIPS was something that major industrial countries had to invest a lot of time and prestige to achieve. Realistically, the TRIPS offers a limited menu of IP protection options -- expanding it to include a new sui generis form of IP would be a huge battle. Thus the natural tendency is to slot software into one of the existing internationally recognised forms of IP. As a result, it may be that copyrigh and software patents are the only two things on the menu.

--- The TRIPS treaty is a trade agreement that intends that patents are not used as non-tariffic trade barriers. It does not define the extent of patent law. TRIPs was in fact dictated by the United States and only confirms the status quo in industrial states. however it is misused in lobbying for new IPR extention esp. by patent attorneys who quote Trips 27 without proper legal analysis. Software is no "field of tehcnology" according to patent law. PA with vested interest like to mix up colloquial and legal language, André

Nonsense plus it misses the point -- TRIPS established minimum standards for IP protection to which all GATT (now WTO) members had to adhere as part of their membership obligations. Moreover, the description is wrong in that countries in the GATT/WTO agreed to eliminate trade barriers as part of an implicit deal -- we will lower our tariffs and give MFN, provided that you deliver things that matter to us -- the developed countries took the position that one of the things they wanted was IP protection in return for lower tariffs on say, textiles. Now one can argue with the deal, what was exchanged, whether it was fair, but spouting silly nonsense as to what the deal was simply makes the debate a waste of time.

Enacting TRIPS was only possible in the context of the overall Uruguay round, becasue in principle the round put so much on the table that there was something for everyone. TRIPS establishes minimum standards for IP protection and for example alligned copyright with German law, rather then US, as well as requiring publication of patent applications at 18 months, (something the US did not want), as well as forcing the US to accept geographic designations of origin, over very heavy opposition from major US multinationals (e.g., Coca Cola, Kraft, etc.) In essence, the comment on TRIPS is driven by bigotry, assumption and not fact.

The problem that TRIPS presents is that, in the current environment, it is very unlikely that it can be added to, modified, limited or extended. TRIPS offers a limited repetoire of IP forms, patents, copyrights, trademarks, GDOs and so on. The result is the cement the tendency to try to use existing forms of IP protection (with their associated criteria, term, etc.) found in TRIPS to protect all the forms of intellectual product. The result is the use of either copyright or patents for the protection of software -- but both forms of IP protection are arguably imperfect for this purpose, because they were designed for other purposes.Colmmack 19:35, 5 Dec 2004 (UTC)

software is a special case

IMO: software is a special case owing to the newness of the whole field of knowlege. Patents are helpful when it takes a real inventive step to add to the corpus of engineering, but not during a time in history when just aboutanything you come up with is new.

If anyone more regular here agrees, could you possibly express it better and add it to the "issues" section?

This special case has been going on for half a century now. Hmm, or a century longer, if you count Ada Byron. Kim Bruning 11:07, 20 Sep 2004 (UTC)

POV additions in last edit removed

Can this analysis be applied to software. Well almost certainly yes in a limited number of cases. But are all software patents those cases, probably not.

could maybe be replaced with "XXX has attempted to apply this to software"; otherwise this is just a statement of POV

In addition, a major problem that has been visible in, for example, US Software Patents, has been patents granted for what are in fact only software implementations of existing technological ideas, business practices or mathematical techniques. Shouldn't software patents about actual inventions that happen to be implemented in software, rather than existing ideas, techniques or knowledge implemented in software form. Even most supporters of software patents take the view that implementation in software alone should not justify a patent.

this needs to be backed up since IMHO implementation in software is probably considered by most backers of software patents to be an ipso facto invention. Also, many people don't consider the US SW patent granting a problem so that is just a POV.

My response to the IMHO is that it seems to be driven by the antit-software patent point of view. My experience comes from working in and for the software industry and direct involvement in the issue of software patents. Companies engaged in software are deeply unhappy with "implementation in software" patents, i.e., patents where the sole apparent invention is the implementation of a known idea in software, rather than say in hardware, pencil & paper, etc. That said, there are inventions that by their nature can only be implemented in software and are genuinely novel, notwithstanding pure software implementation. I could provide a list, but I am dealing with some right now. Indeed, I am looking at one where mechanical versions of this idea existed in the tens of millions and the device is simply an on screen reproduction. I would note that the USPTO has actually specifically addressed this issue in internal communications recently.

I totally agree that many "software" people see the granting of patents for what is basically simply a translation of a set of instructions from English to a computer language as a problem. However, my experience, is that support for software patents tends to be driven by legal departments rather than software and that the legal departments tend to see this as an opportunity even if it makes software development more difficult. Thus, I think you might easily find that "most supporters" of software patents don't see this as a big problem. In any case, in the absence of opinion surveys through the whole computing industry, and I've never seen such a thing, we are just speculating. It would be better, from the NPOV POV if you could find some important group who has made the same speculation so that we could turn this from "most people" into either "according to XXX survey most people" or "the XXX has stated that most people".

Finally in a sweeping statement you say "many people don't consider the US SW patent granting a problem so that's just a POV." This is an anti-software patent mischaracterisation and actually a NSHO (not so humble opinion). People can (and do) favor SW patents in principle and still agree that there is a significant problem with the specific SW patents that are being granted by the USPTO. Indeed if you survey those who are pro-SW patent, most will point out that the USPTO is simply granting a lot of dubious patents (and not just in software) and that one of the biggest problems with software is the failure to consider non-software prior art.

Since this is the internet, and tones of voice don't carry so well, I'm differentiating HOs from NSHOs on the basis of whether I put them directly to the article or instead put them up for debate on the talk page. I can see that had I chosen not to even voice them, they might have been even more humble opinions, but then that would be unlikely to drive forward the knowledge of mankind through inspring intellectual debate and article development on Wikipedia.

Could you please point to one of these surveys. A serious survey of opinion in this area would be a valuable addition to this page.

By contrast, the anti-software patent movement can, fairly, be accused of reveling in the luxury of idealogical purity, or perhaps fanaticism. Obscurantism thus can oddly be portrayed as liberalism and not simply a form of book-burning. Thus the willingness of supporters of software patents to engage in debate becomes a weakness because it is perceived as conceding entirely the fanatics arguments. However, a good test of the value of IP is to type the domain name of Wilkipedia, but replace the TLD with .com -- yes a slimy cybersquatter, hoping to extract money from a free project intended to benefit the public.

clear POV. First section is clearly a simple statement of POV ("fairly"). Verisign has clearly stated that domains are not property, so they can't demonstrate the value of IP (yes I assum you don't mean the protocol). If you consider them to be property then state a source.

AGAIN, you need to consider the source -- VERISIGN has a specific legal interest is saying domain names are not intellectual property -- it is a liability driven statement. However, virtually all IP practitioners (and new texts) regard domain names as a form of intellectual property.

The trick here, is that I have given a source (verisign) and you haven't. I do think you have something valuable to put here. The more serious problem with your statement is that the "anti software patent" movement includes people like the Free software foundation who have said a) Trademarks are a valuable thing. People should not be allowed to cheat on trade marks and b) there is no such thing as intellectual property. They do not see any link between trade marks (good) and patents(bad). In order to carry your point, you should a) find another example than wikipedia, since lack of IP restrictions is one of wikipedia's claim to fame and reasons for success and this needlessly breaks style on self references b) link this all together with a general argument for IP in the abstract and c) drop phrases like reveling in the luxury of idealogical purity, or perhaps fanaticism which are extremely unencyclopaedic. Alternatively, an example where a software patent actually did something valuable would be a good way to go.

You have a source and I dont? Yours is Verisign -- oh dear! Cue weary explanation. Why does Verisign want to take the position that domain names are not "property." The reason is that if domain names are 'property' the taking of a domain name is depriving its owner of property, and action which can then give rise to a host of legal remedies, fraud, theft, conversion, etc., etc. For Verisign this would be a nightmare, not only because it would complicate their legal practices, but given the frequency of balls ups in domain name renewals, etc., it would create a liabilty problem. The problem you are confusing a party legal argument with an objective, dis-interested point of view.

(some pretend that when TRIPs was signed it was not)

who? please provide reference.

From the instrumental perspective: This question is a rhetoric trap that reverses the burden of proof. An application of patent law to a field has to be justified by economic evidence. Patent law is seen as an instrument of economic policy. (left in the text for now)

needs to be cleared up.

what about the property point of view (even if it's damaging society, I don't have to let you build your orphanage on my property).
what about the claim that software is just a sad victim of the need for equal treatment of all technologies.

Move and first layer indented comments Mozzerati 21:06, 2004 Sep 30 (UTC)

double indented layer layer is by User:Colmmack - Colmmack, could you please sign your posts to talk pages with four tildes like so ~~~~ . This gets converted automatically to a username and date and makes it easier to work out who said what. Using colons (:) to indent also helps. I've taken the liberty of indenting your comments. I hope you don't mind.

Mozzerati 14:20, 2004 Oct 2 (UTC)

Major cleanup

As you can see, I have split this article which was getting really long. The resulting new articles are

software patents under US patent law
software patent debate (needs major cleanup as well - still 50 or so Kb)

I kept this one to a minimum, as factual as possible, with a listing of relevant definitions (or lack of definition), a short discussion of these definitions, links to the distinct patent regimes regarding the patentability of software and that's all for now. The article on abortion, a highly controversial (and very different) issue, was somehow my model (that one does not even contain a "debate" section). Any comments? --Edcolins 22:40, Nov 5, 2004 (UTC)

Unfortunatly the c;eanup needs a cleanup. A "means plus function" example was used to show how a patent could sneak in software. However, means plus functionclaims have a usually a speacial interpreataion, limiting them to the means disclosed in the specification. Thus unless the specification describes the use of software as the "means" it is unlikely that the claim could be read as encompasing software. In other words, "means for . . . " is a really bad example. Colmmack 00:22, 6 Nov 2004 (UTC)

Thanks for this comment about functional features and means-plus-function claims. Although US patent law does not seem to allow means-plus-function claims to sneak out in software implementations when there is no explicit support in the description, certain jurisdictions such as the European Patent Convention allow this to happen provided that it would have been clear for the man skilled in the art that a software implementation could be used, even though the description does not explicitly mention that a characteristic can be "softwarized"... I have added the limitation "under certain jurisdictions". More on this may be explain in the "Software patents under..." articles. --Edcolins 11:47, Nov 6, 2004 (UTC)

What you are here discussing is an equivalence point -- i.e., it is well known that an equivalent of a 'hard' claim element may exist in software, and thus substituting software will be considered to be infringing means. Technically, such an arrangement might also give rise to §112(6) equivalence under US law as well. Still, I would be very cautious about using a means-plus-function element as an example in this context. The key issue is equivalents and indeed, where an invention in toto is novel, holding the replacment of a hardware element with a well known software equivalent to be infringing would not seem to me to be particularly controversial. Colmmack 19:04, 6 Nov 2004 (UTC)

I understand that, under US patent law, some decisions have restricted the scope of a means-plus-function claim to the equivalents of the elements described in the description. To the best of my knowledge, this does not apply in European patent law (as far as the European Patent Convention is concerned at least). The doctrine of equivalency according to the European patent case law seems to serve only to extend the protection beyond the wording of the claim, when a structural feature is claimed. When a functional feature is claimed, the doctrine of equivalency does not apply to decide whether the functional feature is disclosed "in a manner sufficiently clear and complete" according to Art. 83 EPC [3]. Thus, it may be possible to draft a claim which encompasses software implementations without describing explicitly this type of implementation in the description (provided that it would be obvious for a person skilled in the art to trade the disclosed hardware implementation for an undisclosed software implementation). By my opinion. --Edcolins 08:19, Nov 8, 2004 (UTC)

It's somewhat more complex - there are two forms of equivalence in US patent law, the doctrine of equivalents which is seperate from §112 paragraph 6 equivalence in means-plus-function claims. The first is an essentially legal doctrine of claim interpretation, the latter is a statutory provision based on the language in 35 USC § 112 that allows means-plus-function claims ---- so its not decisions limiting means-plus-function, it is the underlying statute.

§112 equivance is essentially the same as the doctrine in European patent law -- a structural element that is replaced by an obvious equivalent to what is disclosed in the specification -- but §112 is narrowly drawn. EU patent agents fall easily into using means-plus-function language in US claims without realizing that it may limit claims rather than make them broad -- i.e., all the intended means and their equivalents need support in the specification. I belive that the same would tend to apply to a means-plus-function element in a European patent, i.e., the scope of the means would be limited to that obvious and which corresponds to the means in the spec Colmmack 19:30, 8 Nov 2004 (UTC)

Directive on the Patentability of Computer-Implemented Inventions - Neutrality

Hi Rl, I modified your version [4]. Neutrality is also about fairly representing all sides of a dispute, which should mean not stating only what is considered by the open source community, but also by economists, the industry, the patent profession and so forth. However, it would be cumbersome to state each and every position in this general article, while the explanations of positions are clearly belonging, I think, to the article about the directive we are talking about (which is partially the case as you can see in the "reactions" section). Stating that the proposed directive is controversial might be enough in this more general article by my opinion, and might be enough to lead the reader towards a more detailed explanation of the European directive, if he wishes to know more about the subject. --Edcolins 20:55, Nov 19, 2004 (UTC)

Please cite your sources, preferably authoritative ones

I removed this paragragh:

On a broad definition, software patent is sometimes taken to categorise any patented invention which could be fully specified by the code of a computer program operating particular known conventional hardware.

Please cite your sources, preferably authoritative ones. Thanks. Please also justify why the term "computer-implemented inventions" would be broad (... close to the broad definition above). I don't think this is correct. --Edcolins 11:35, Nov 25, 2004 (UTC)

FOLDOC definition added

I've added the definition from Foldoc, not because I think it's particularly definitive, but because I think a very simple, even over-simplistic, definition along the lines of "a software patent is a patent which can be infringed by software" is a good place to start the article.

I think it's better for the reader to give them at least somewhere to stand, and then explain what's wrong with it, rather than throw them straight into a swirl of confusion.

The fact that Foldoc is by no means necessarily a definitive authoritative legal resource I think if anything underlines the point made in the subsequent paragraphs.

Furthermore, it's a definition which is out there on the net, so I think it's no bad thing to present it and critique it.

My text I think could use some copy-editing for better readability, but I hope it's a useful verion 0.1 enhancement.

The FOLDOC definition is fine enough. However the one you added is slightly different, a rather misleading: "a software patent is a patent which can be infringed by software". A patent can only infringed by an action (using, selling, importing, producing), not by a product, nor a process. I tried to reword you version, but I am not satisfied yet about the criticism of the FOLDOC definition. --Edcolins 12:10, Nov 27, 2004 (UTC)

I removed the part criticising the FOLDOC definition unless there is some facts behind this comment, which looks like "original research" to me. --Edcolins 21:24, Dec 8, 2004 (UTC)

Patents for a protection gap of copyright law?

"his forbids the direct copying of any part of the program code. Applying for, and being granted a patent gives much stronger protection. The invention achieved by the code may then be protected, and others who use the same invention may be sued to stop, or forced to licence the patent (even if they have come up with and developed the idea independently).

This gives the patent-owner much stronger protection for his invention. But it also means he has been granted a state-backed monopoly, and the chance to close out all competition, if the patented invention cannot be avoided. The question of whether in the area of software this is on balance a good thing or a bad thing for society has attracted intense and heated legal, academic and political disagreement. This is reviewed in the associated article Software patent debate."

This paragrpah is wrong, because software is no "invention" according to Art 5.2 EPC. In fact there is nothing such as a "software invention", professionals in the field do not speak of inventions but ideas, concepts, abstractions ecc.

"gives much stronger protection" is inaccurate as patents covers something different. Copyright law differs in member states of the EU. Copyright extends to more the just 1:1 copying. Stronger is no neutral term.

The real question is rather whether patent law was an appropriate tool to provide protection for software ideas/concepts. There are many indications that patent law fails. Hartmut Pilch for instance proposes a copyright style system.

Additionally the so called "protection gap" is pure fiction put forward by patent attorneys. Software developers don't ask for a software idea protection and if the burden of proof lies with the proponents of patents to show that it was the appropriate tool given the fact that patent pratice is developed under different market structures.

---Andre, 5.12.2004

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