By: Neel Krishnaswami

Neel Krishnaswami — Fri, 26 Sep 2003 03:35:17 +0000

How much money does the EPO take in from patent fees? That has been a major driver in the corruption of the US patenting process: about half of the USPTO’s budget comes from fees for patent reviews, which creates a nasty perverse incentive for it to accept junk patents.

By: Reimer Behrends

Reimer Behrends — Fri, 26 Sep 2003 00:03:09 +0000

One thing that is important to note here is that inventions that involve software have never been excluded from patentability in its entirety, but was always predicated how software was used within an invention. The foundations for modern European patent law with regards to software were laid in 1976 with the “Dispositionsprogramm” decision of the German Federal Court (“Bundesgerichtshof” or BGH). This landmark decision established that in order for an invention to be patentable, it had to be of a technical nature: It had to make use of controllable forces of nature. Excluded from patentability were inventions that were simply instructions for the human mind, even if they were executed on a computer. The decision also provided a methodology for distinguishing between technical and non-technical matters. The decision (and those that followed) did not prohibit clearly technical inventions from being patented, simply because they had an integral software element. The one remaining problem became where and how to draw the line between technical and non-technical inventions that involved software. While the BGH had laid down a pretty clear methodology, it became muddied up quite a bit subsequently due to the efforts by various entities to push the line more towards the realm of pure software. And the entire debate about the new patent directive was never about explicitly creating “software patents”, despite much bad reporting that said otherwise, but always about where and how to draw the line (which, of course, could be drawn so that it included all software de facto, even if not de iure). In EU law, the technicality criterion was originally encoded in article 52 EPC, which prohibited the patenting of “computer programs … as such”, giving the executive organs and the courts discretionary power as to what constituted a computer program “as such”, and when the use of software was integral to an otherwise patentable invention and did not prevent patenting it. The problem with that is that the whole idea of giving somebody discretionary power doesn’t really work out if that somebody is doing the “if you give me your little finger, I’ll take the whole arm” routine. If there is a bad guy in the whole drama, it is the European Patent Office (EPO). When I started researching the state of affairs of software patentability in the early 90s, the EPO had already started abusing the discretionary power given to it (and the same had happened, to a lesser extent, in the national courts, including the BGH). It all revolved around creative interpretations (read: “twisting”) of the technicality requirement. For instance, a drawing algorithm for geometric constructs could be considered technical when used to draw the layouts of electronic circuits, and was therefore considered patentable. Similarly, programs that made efficient use of screen real estate were also considered technical, because they optimized the use of the screen as a technical resource. As of now, getting something patented by the EPO is less a matter of it being technical but a matter of drafting it correctly (many national patent offices, on the other hand, tend to be more strict). Much blame has also been put on JURI, the EP’s committee for law and the internal market, which drafted the proposal for the new directive. It should be noted—because the reporting on it has been atrociously bad—that even in its proposed form the directive did not explicitly allow software patents. It simply gave a very waffly version of the technicality criterion, which could be bent any way the EPO or the courts wanted to read it. This not only allowed the continued exploitation of loopholes, but also would not create any harmonization whatsoever, but rather the opposite. It was, simply put, extremely poorly drafted legislation (whether the poor drafting was due to malice or incompetence, I’ll leave for others to decide). Enter the European Parliament. The EP has the following choices: Toss the directive out and allow the EPO to continue its abuse of existing law; pass the directive as proposed by JURI, and quietly allow things to continue (and possibly to worsen, once there is a Europe-wide patent), or to fix matters, one way or another. It chose the third option. The amendments with which the directive has been “lumbered” are “we really mean it” legislation, sending a message to a part of the executive that abused discretionary power by explicitly enumerating all imaginable boundaries to that discretionary power. It’s not great, but the culprit here is the EPO, not the EP. Most of the amendments close one or more loopholes that have been exploited by the EPO. The exclusion of inventions that improve the efficiency of an existing computer puts a stop to the “better use of screen space is technical” approach, for example.

By: Damien Smith

Damien Smith — Thu, 25 Sep 2003 21:13:39 +0000

Not that I agree with his position on this (I don’t), but you have to remember that Bolkestein has been stiffed by the European Parliament before, most importantly on the proposed European Takeover directive, which in three years was twice defeated in Strasbourg. Added to his inability, for example, to open up the French electricity market, Bolkestein’s job has to be one of the most frustrating on the Commission.

By: Randolph Fritz

Randolph Fritz — Thu, 25 Sep 2003 18:36:15 +0000

Y’know, when unelected officials decide what is and is not property, it’s not the elected officials in charge.

Comments on: Dogs in the manger

By: Neel Krishnaswami

By: Reimer Behrends

By: Damien Smith

By: Randolph Fritz