LASP

Now I am stupid :-)

Here is my response to a critique by a patent attorney of my post on the IPKAt yesterday which I have just posted on the IPKat. I have changed the formatting, my comments appear in a different font and in red.

Dear “Gerontius”

Please see my responses (bold) to your thought provoking comments. Regards….

p.s….I think ‘Democraticus’ had some ‘valid’ points…

Cristian

While you may have some valid points, I'm afraid your entire long letter must be immediately consigned to the dustbin by trying to support those points with false statements.

Firstly, Peter Prescott QC absolutely positively did not say that the European Patent Office has granted 40,000 patents on computer programs as such. Your careful misquoting does him an injustice. The full sentence actually reads: "Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them".

I think it is important to quote the full statement of Peter Prescott QC.

“130. Despite the prohibition on granting patents for computer programs as such, it is said that the EPO has granted more than 40,000 of them. It is said that not a few of these pertain to business methods as well. From the point of view of the applicants in our case, if there is any chance of getting such a patent it may be said to be a rational business choice to try it. If not, their competitors might. I have pointed out that patents that are wrongly granted can be very expensive to challenge, and perhaps beyond the means or inclination of small and medium enterprises. An accumulation of patents of that sort (sometimes known as a “patent thicket”) may be a serious barrier to entry.”

Adopting your interpretation, Peter Prescott QC did not dispute that the number of 40,000 software patents had been granted. He made his statement for a reason. The background is clear from examining the whole quote and reading the whole of the CFPH judgement. I am sure that a detailed study of the patents granted by the EPO would confirm that it is true that 40,000 plus software patents have been granted. I do not need to argue about numbers because even if 1 software patent had been granted by the EPO it would represent a grant against the clear purpose behind the exclusions in Article 52 of the EPC (as I go on to discuss below)

Mr Prescott in no way supported the statement but was merely quoting interest groups. In fact, his judgment does not refuse the application in question for being a computer program as such, but for being a business method as such, so the relevance of the decision as a whole to your point on "software patents" is questionable. Mr Prescott was also largely supportive of the EPO's practice in which patents it did or did not grant,

Given your accusation that I mislead the reader about Mr Prescott’s statements in his decision, I am very surprised by your statement. Prescott does not make any statement suggesting that the EPO’s practice in granting patents in relation to software is the correct approach. In fact he makes it very clear that, adopting a purposive approach to the interpretation of Article 52 of the EPC, patents should not be granted for software as such. He also goes on to clarify in paras 25 and 35:

“25. Article 52(3) indicates that a subject-matter is excluded ‘only to the extent’ that a patent relates to it ‘as such’. This is confusing. In the past it has led some people to think that you should be able to patent any new, non-obvious idea, so long as what is claimed as the invention does not consist only of excluded subject-matter. According to that reasoning you could patent an excluded item e.g. a computer program by the formal device of claiming some physical artefact (e.g. “A magnetic disk in which my program is stored”, or “A computer when operating under the instructions of my program”). And indeed if it were just a question of interpreting Article 52(3) as if it were an Act of Parliament, they might have been right. However, it is not an Act of Parliament, and they were not right.”

"35. The same approach cannot be taken to computer programs. The reason why computer programs, as such, are not allowed to be patented is quite different. Although it is hotly disputed now by some special interest groups, the truth is, or ought to be, well known. It is because at the time the EPC was under consideration it was felt in the computer industry that such patents were not really needed , were too cumbersome (it was felt that searching the prior art would be a big problem ), and would do more harm than good . I shall not go into details here but it is worth noting that the software industry in America developed at an astonishing pace when no patent protection was available . Copyright law protects computer programs against copying. A patent on a computer program would stop others from using it even though there had been no copying at all.”

It is important to note that Prescott QC challenges the interpretation of ‘some people’ of Article 52 and makes it quite clear that, despite the efforts of certain lobbyists (he doesn’t use the word, but please give him credit for his diplomacy when he says ‘special interest group’) to cloud the position, the truth behind the rationale for the Article 52 computer program exclusion ‘is, or ought to be, well known’. The rationale for anyone who wants to conveniently forget, as Prescott quotes in paragraph 35, was inter alia ‘they would do more harm than good’. Harm is a strong word and even I, with my limited intellect, can interpret this as meaning that our forefathers had the sense to realise the software patents were not beneficial. By the way, the interpretation which Prescott QC challenges is the interpretation adopted by the EPO in that, its very wide interpretation of ‘technical effects’, has led it to allow software to be foreclosed when claimed with what is nothing more than a computer, i.e. a computer-implemented invention in the strict sense where the patent claims involve nothing outside of software and a computer (or similar apparatus). If you wish I can provide you with recent statements earlier this year from the EPO which clearly confirm that the EPO’s interpretation is of the type rejected by Prescott QC.

He also undertakes a detailed analysis about the approach to interpreting Article 52 and makes it clear that ‘technology’ is not positively defined in Article 52 but defined negatively. He goes on to explain that although people may use ‘technology’, ‘technical effects’ etc as shorthand, that at the end of the day these are not expressions defined in Article 52 and reference must always be had back to Article 52 in considering whether something is patentable subject matter.

“I mention this near the outset of this judgment because it is important. If you look at the case law on the subject, both here and in Munich, you will find many references to “technical contribution”, “technical result”, and so on, being touchstones by which these cases are decided. The use of the word ‘technical’ as a short-hand expression in order to identify patentable subject-matter is often convenient. But it should be remembered that it was not used by the framers of the Patents Act 1977 or the European Patent Convention when they wanted to tell us what is or is not an ‘invention’. In any case the word ‘technical’ is not a solution. It is merely a restatement of the problem in different and more imprecise language. I am not claiming that it is wrong to decide cases with reference to the word ‘technical’. It happens all the time. What I am saying is that it is not a panacea. It is a useful servant but a dangerous master.” (paragraph 14)

although he decided that a different approach to deciding the boundary between patentable and unpatentable should be used.

Your further suggestion that "refusal of the 'Software Patents' Directive shows that there is a good understanding amongst many MEPs of the problems with the current patent system in the EU" is so misguided as to be laughable. All it showed was that when you have two opposing lobby groups you end up with a complete breakdown of the system. The final proposal made nobody happy, and was resoundingly rejected by all sides. During the process, many, many of the proposed amendments to the CII Directive illustrated such basic misunderstandings of patent law that patent professionals all over Europe (including Mr Prescott QC) watched the proceedings with real dread for fear of what mess might result from some patchy and ambiguous Directive.

Next: stop spouting the mantra that the EPO are illegally (or unconstituionally as you put it) extending the realm of patentable subject matter. Much like everyone else, they are simply struggling to interpret the EPC and those mysterious words "as such". Just because you happen to disagree with the direction that has been taken by the EPO, the UK courts and the German courts does not mean that any of these institutions are commiting cardinal sins. Why can you not accept that these people have given at least as much thought as you to the question of what makes something patentable and that maybe, just maybe, they have a point as well?

Firstly, I would ask you to read my comments again. You will see that I talk about two things in my comments. I explain that I believe the EPO is creating a de facto jurisprudence which goes beyond a purposive interpretation of the EPC on Article 52 and that the status of this jurisprudence, given the EPO decisions are not binding on national courts, has not, as yet, resulted in a de jure change in substantive patent law. However, given your expertise of the patent system, you will understand full well what impact the body of EPO “jurisprudence” would have on the legitimisation of software patents if it were to become, through a lack of an independent judiciary or otherwise, the case law adopted by a single European patent court in Europe. The second thing I talk about is that, because of the role of the EPO in granting patents and how the administrative appeals are dealt with within the EPO, and not an external body, the way the EPO interprets the EPC has a profound effect on the number of patents granted. Having a little knowledge of constitutional law, for me the dual role of the EPO is problematic. It grants patents but it also has a quasi-judicial role in interpreting the EPC. However, it is not only me that is cautious about the role of the EPO and its suitability as a judicator of what should and should not be patentable. Prescott QC also states:

“That said, the EPO, beyond having certain limited powers to revoke patents it granted itself, has no jurisdiction over the patent law of the U.K. The EPO is not the European Court of Justice, and Parliament has not seen fit to confer such powers upon it. On matters of patent law the role of the EPO is persuasive, not prescriptive . The EPO is not equipped with a staff of expert economists who are competent to decide if the patenting of business methods, or computer programs, would be good for our country and even if it was it would still be for our Parliament to decide. So, although we should pay careful attention to EPO decisions, and the decisions of other Convention courts, we are not bound to follow them blindly” (para 56)

Finally, I am getting sick and tired of the constant false accusations that European patent attorneys and the EPO are trying to make everything (and have a vested interest in making everything) patentable. Such accusations serve no good since they result in people mistrusting the cogent advice of the very people who understand the legal side of the patent debate.

I am sorry, but from my experience, reading plenty of papers including patent attorney blogs and other material, a large number of patent attorneys (or certainly the groups speaking on their behalf) cannot separate their economic interests from an analysis of what should and should not be patentable. Although I think patent attorneys have an extremely valid role in assisting in any review of how patents are granted, filed, litigated etc (i.e. questions relating to the administration of the patent system), I do not think that they have the sufficient independence to contribute to an objective debate on what should be the content of substantive patent law. Any dilution of what is excluded subject matter only serves to benefit patent attorneys. I would love for you to provide a cogent explanation of how you believe that patent attorneys do not have a conflict of interest in this discussion.

If only the software programmers, the economists and the patent professionals would just sit down and talk, then agreement might be reached. Unforunately, as your post confirms, the anti-patent brigade seem intent on alienating the very people who might be willing to support them if they only explained what it was they actually wanted.

Your statement is a generalisation and factually incorrect. It shows you have not spent the time to actually research what my position is (perhaps when you have the time you could read my piece earlier this year on software patents which you can find on my blog www.lasporg.info). I am not against patents per se. I am therefore not in any anti-patent brigade. Unfortunately, this kind of statement of trying to lump those seeking to make an objective and not self-serving analysis of the patent system as ‘anti-patent brigade’ individuals is an example of how the pro-software patent lobby seek to denigrate legitimate and moderate comments on patent reform. I actually state in my previous articles that I am not against: a) patents and b) computer-assisted (not implemented) inventions. I also provide a detailed proposal for how ‘as such’ and ‘to the extent’ should be interpreted if adopting a purposive approach to the EPC and explain what I believe is the right approach for dealing with hybrid inventions which is consistent with the spirit of Article 52. You may wish to read this proposal. In other words, I have clearly stated my position. Not only have I clearly stated what I believe in but many groups involved in the discussions relating to the failed software patents directive provided detailed documents setting out their concerns of the proposals. Since you seek to single out the FFII, although I do not speak for the FFII, from my knowledge, the FFII was one of the few groups to actually conduct a detailed analysis of the proposals and to come up with 10 clear points of concern and suggestions for amendments to the ‘common position’ which, unsurprisingly, were very close to how Prescott QC stated the EPC should be interpreted, i.e. clear definitions and not vague concepts of ‘technical contribution’ etc.

If you can tell me exactly where you would like the boundary between patentable and non-patentable computer inventions to lie, I would love to hear it, but there seems to be no clear goal by groups such as the FFII except to block any and all developments in patent law.

Please see my comments above. This is simply propaganda (unless by ‘development’ you mean ‘self-serving’ development for patent attorneys and others).

And do not say that anything using software should be unpatentable; learned judges across Europe recognise that this cannot happen since computers are an essential part of modern industry.

I have never said this. You have not understood my position. I urge you again to read in more detail my detailed critique of software patents in which I state quite clearly (and encourage) a clarification of the law to allow for inventions which involve software. I actually state that the presence of software should not prevent an invention being patentable if it satisfies the other criteria for patentability as long as the software element itself is not foreclosed (monopolised).

Give us a sensible proposal and maybe there will be the possibility of a debate.

Thank you for listening. Hopefully my comments will enable you to refine your own so that I can actually work out what it is you want.

Lastly, what I would say (although I perhaps am over optimistic) is that, since you read physics at such a prestigious university as Oxford, this would (I rudely make the assumption) entail you having: a) an understanding of how the furtherance of science (and the arts) is important for humanity as a whole; and b) that mathematics should be kept free for all and should not ‘be owned’ by corporations. If you have grasped these concepts from your years of study you may realise why many computer ‘scientists’ take objection to people trying to extend patentable subject matter to cover algorithms and ideas (functionality), which is in essence, what many granted software patents do. Maybe you should read one of the many Richard Stallman talks on the danger of patenting software, e.g. http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html. I would also recommend Ben Klemens book, “Math You Can't Use: patents, copyright, and software (peer-reviewed book) November 2005”. See http://ben.klemens.org/