LASP

Migration to blogger

I am migrating to blogger (still need to sort out CNAME issues fo directing www.lasporg.info).

Please see my latest blog posting at

http://lasporg.blogspot.com/2007/02/why-falling-at-third-hurdle-is-better.html

I would ask that you update your RSS readers with the blogger RSS feed.

Regards Cristian

Another huge damages award..

It is with great sadness (even though it is Microsoft) that I have to inform readers of the news of the US$ 1.5 billion award of damages against Microsoft for the claimed infringement of a number of patents of Alcatel-Lucent relating to audio conversion to the MP3 format.

What a waste of time and money. What good is this doing to the IT industry when we end up patenting mathematics simply because we process the maths via a computer rather than our minds. Although Microsoft is paying (I have little sympathy), really society as a whole pays every time we grant a software patent and every time an award of damages is made. Science is not promoted by the monopolisation of mathematics and mathematical models.

For another view of why we shouldn't have software patents, read the views of a software developer who created the well known MP3 encoder, BladeEnc: here 

Computer programs are not excluded subject matter??

Head on over to the IPKat for some interesting discussions on the comments section:

It's getting chilly....the Gowers review states the obvious

So, at the end of the last week we had the long awaited Gowers Review of Intellectual Property. As someone who is firmly against software patents you might think I was pleased with the outcome of the review in this area. Well, to a certain extent, Gowers can be praised for not going off-piste and sticking to the line that computer programs 'as such' or 'pure' software should not be patentable and for the number of statements he makes about the negative effects on innovation of "pure" software patents. All good stuff and for anyone not wanting to read through the report here are the juicy bits:

"4.114 There have been calls in the UK to introduce pure computer software patents to

ensure that innovation is properly protected and encouraged. In Europe, patents are not

granted for computer programs as such,87 but patents have been granted to computer-based

innovations provided they have a technical effect. In the USA, pure computer software

patents can be granted. The evidence on the success of pure computer software patents is

mixed. The software industry in the USA grew exponentially without pure software patents,

suggesting they are not necessary to promote innovation.88 The evidence suggests software

patents are used strategically; that is, to prevent competitors from developing in a similar

field, rather than to incentivise innovation.

4.115 In addition to the concerns that increased protection does not increase incentives,

some have commented that pure software patents do not meet the criteria for patentability.

The most profound problem with using patent law to protect software is that innovation in

the field is usually accomplished in increments too small to be viewed as inventive steps. 89

Several submissions to the Call for Evidence, for example the Professional Contractors

Group’s submission, argued that software should not be patentable in principle. Where

freelance businesses develop software, they rely on copyright to protect it. This protection is

free and automatic. The copying of as little as 1.7 per cent of a program’s code has in the past

been found to be infringement of copyright.90

4.116 Introducing pure software patents could raise the costs for small software developers

to mitigate against risks surrounding R&D, thereby inflating the capital needs of software

development. Sun Microsystems argued that without exceptions that allowed for reverse

engineering for interoperability, pure software patents could stifle competition.

4.117 Last year, the European Parliament rejected the Computer Implemented Inventions

Directive, but this issue has been raised again. The economic evidence suggests that such

patents have done little to raise incentives to innovate, and other evidence suggests that the

introduction of such patents will have a chilling effect on innovation. In the absence of such

evidence, a new right for pure software patents should not be introduced, and so the scope of

patentability should not be extended to cover computer programs as such."

(Crown Copyright, the Gowers Reveiw of Intellectual Property, December 2006)

However, all in all, in respect of software patents I find the review a great disappointment because it does little more than state the obvious. The Gowers team has swallowed the pro-software patent lobby propaganda hook, line and sinker, by failing to undertake any detailed analysis (or show any understanding) of the real issues facing the IT community in Europe, i.e., the uncertainty around 'computer assisted inventions' that was at the centre of the debate on the Software Patents Directive (otherwise known unhelpfully as the Computer Implemented Inventions Directive). The report accepts, without question, that it is right to talk of a distinction between 'pure' software, or software 'as such' and software having 'technical effects' and in doing so it effectively fails to move forwards from July 2005. There is and never has been a test of 'technical effects' in the EPC and the UK Patent Act. The concept has been used by the European Patent Office to create the illusion that certain software applications are capable of being patented, to render a thing that is neither a physical artefact or a process (and which has no experimentation cost justifying a monopoly) into something which, by adding the word 'technical', seemingly satisfies the test for patentability. However, the doctrine of 'technical effects' has been severely criticised from its very inception. Software, in whatever form, does not by itself have a technical effect (readers can review my article of January 2006 linked to on this blog for a detailed discussion on this point). The fact that Gowers also uses the language of 'computer implemented invention' again shows that the review has been gobbling up too much of the pro-software patent lobby's (and EU Commission's) penchant for trying to have us believe that an invention can subsist in nothing more than software running on a computer (a position that has been rejected by the UK Court of Appeal last month when it confirmed that, to give effect to the intention of the EPC, a computer program and the standard apparatus used to run the computer program, should both be considered as excluded subject matter). The recommendations are hollow in failing to: (i) protect the UK software industry by actually make a clear statement against the continuing attempts by minority vested interest groups to water down the purpose of the computer program exclusion by the charade of the 'technical effects' doctrine; and (ii) look at the real issues of debate, i.e, that software (of whatever type) is not suited to the patent system yet there are many inventions that are assisted by software programs ('computer assisted inventions'), where the law needs to be clarified to ensure that, the mere presence of the software, does not prevent a physical artefact or process, which is assisted by the computer program, being patentable (where all the other criteria for patentability are met).

So Santa this year has not brought me what I was wishing for..a proper debate on software patents...

Long awaited court of appeal decisions

Today we had the judgement handed down in: Aerotel Ltd (a company incorporated under the laws of Israel) and (1) Telco Holdings Ltd, (2) Telco Global Distribution Ltd

(3) Telco Global Ltd And In the Matter of: The Patents Act 1977 And in the Matter of: Patent Application GB 0314464.9 In the name of Neal William Macrossan

[2006] EWCA Civ 1371.

The judgement can be download from Bailii.

I will be posting a full review of this judgement and other issues in due course.

Fourth posting on EPLA...may the force be with you...

Originally posted yesterday on the IPKat responding to the second post by the patent attorney who originally commented on my first EPLA post. However, reposted this morning to make some corrections.

---------------------------------------------------------

Ok, now I have worked out how to delete comments, I have reposted my comment of late last night correcting some typos, clarifying a few comments and deleting one quite amusing unintended double negative :-)

You politically try to state that nobody is reading what you are saying carefully enough.

"There is nothing political.."

However, from my perspective you are not reading what I am saying and are also not reading what Peter Prescott was saying - I personally find it highly amusing that you try to use CFPH to justify your opinion that the EPO are habitually granting patents that they should not.

I don't need to - you only need to go and examine the patents the EPO has granted. As it's your profession, why don't you go and read some patents and see that the EPO has granted thousands of patents for computer programs or computer-implemented inventions which have foreclosed the software element. Once you have counted the number of patents for software, go back to Prescott's judgement and read para 25

“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.”

Please note, an excluded item..."a computer program". I don't think this needs interpretation, a computer program is an excluded item. Now go and read all the exclusions. You might just start to see a pattern in the madness of our forefathers... there is something that a NUMBER OF THE EXCLUSIONS have in common, they seek to prevent IDEAS, MENTAL THOUGHTS, EXACT SCINCES etc from being patented and hence avoid the creation of a knowledge tax. The basic constructs of mathematics, mental thoughts etc should not be patentable. Please now try and adopt a 'purposive approach' to the exclusions given this is an international convention. If you can't see that computer programs are meant to be excluded go back to step a. If you get confused with the words 'as such' and 'to the extent', go back to paragraph 25 of CFPH judgement and maybe also paragraph 103 (and the little man test) in respect of hybrid inventions. I think my explanation of how the words 'as such' and 'to the extent' in my article referenced above is completely consistent with the need to address hybrid inventions which involve a computer program. I think I clearly set my explanation out in my article. I am sorry that you cannot follow this explanation or that you are blind to the logic behind the Article 52 exclusions. Not everything should be patentable. There are certain fields of human endeavour which are rewarded by other forms of intellectual property protection.

Now having estalished that a) software patents have been granted by the EPO; and b) software is an excluded item, please explain how you can reason that the EPO is interpreting the EPC in the same way as Prescott QC does (or any other person adopting a purposive interpretation of the exclusions) when despite the fact that Prescott clearly considers computer programs to be excluded subject matter we are swimming in computer program patents! To give you just one snippet of how the interpretation of the EPO has mutated in 30 years to fit the needs of their 'customers' better, take the reasoning in the recent patent application of:

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

"Moreover, the Board would like to emphasise that a method implemented in a computer system represents a sequence of steps actually performed and achieving an effect, and not a sequence of computer-executable instructions (i.e. a computer program) which just have the potential of achieving such an effect when loaded into, and run on, a computer. Thus, the Board holds that the claim category of a computer-implemented method is distinguished from that of a computer program.”

I'll translate what the board is saying: computer program on its own =computer program, computer program run (now hey presto it's doing something) in a computer system (er..didn't know computer programs were meant to run in a computer system, that's magic..) = patentable. Er...seems pretty damn close to what Prescott was saying was the 'wrong' interpretation of the computer program exclusion in para 25 of his judgement. The net result of the board's view is that computer programs are foreclosed (patented) if not considered in the abstract but as part of a computer system. Now, go back and read the EPO's examination guidelines back in the 1970's and read the current guidelines in respect of the exclusions - once again there has been a mutation in a way which distorts the purpose behind the Article 52 exclusion on computer programs. You say that you are an expert on these exclusions. If this is the case, I really don't need to explain the linkages and relationships between the exclusions.

He warns of the dangers of granting patents wrongly and states, very strongly, that appropriate lines should be drawn. However, his line in the sand appears to me to fall squarely with the EPO's, even though his is drawn with a stick and the EPO are using a pebble. To stretch the metaphor further (!), Mr Prescott is clarly of the opinion that the pebble is something of a blunt instrument compared to his stick, but that is where his criticism of EPO practice ends.

You are entitled to your opinion (well, you are in an EU society which hasn't quite yet slumped as low as sanctioning the patenting of ideas/thoughts....perhaps one day you will have to pay a patent licence to express your opinion ;-) ) - I think Prescott makes it quite clear that he thinks the EPO adopts an overly broad interpretation of 'technical effects' with the result that software is found to have technical effects. See also my discussion above

I managed to track down your article and can find none of the answers I was looking for: what is a "software patent" or "software-assisted invention" (definition, please), and what is the appropriate purposive construction of "as such"?

This is quite funny. Of course you would be looking for a definition of 'software invention', you are a patent attorney and perhaps after all those years of studying the 'mantra' (to borrow from you) of patent attorney textbooks, you might find it hard to believe that there is NO SUCH THING as a software 'invention'. If you read my article again you will see I quote a well known software executive and developer who summed the situation up very well when he said that the term 'software invention' was a term invented by lawyers (with no doubt some help from patent attorneys). For me the expression 'invention' in the context of what is a 'patentable invention' has to be defined by reference to the EPC and, as I explained earlier (as noted by Prescott), a PATENTABLE invention is defined negatively by what IT IS NOT and IT IS NOT SOFTWARE. Again, as far as software assisted inventions are concerned, the actual PATENTABLE part of the invention is no different then any other physical invention in the fields of technology which are patentable fields as per the EPC, it is just that in creating the physical effects which are patentable (because they satisfy all the criteria for patentability) a software program is involved but, in a purposive interpretation model, the software element would not form part of the patentable claims and the actual software would not be patentbale (although it would be protected by COPYRIGHT!). Now a perfect example of the kind of invention that fits this explanation is ABS, the braking system. As for 'as such' and 'to the extent' please read above - I spent about 500 words explaining what I saw as the purposive approach. Other people have managed to grasp what I was advocating.

- I've reviewed some of the preparatory materials for the EPC and it looks to me that the framers weren't quite sure what they meant by it either, so it is disingenuous to imply that there is one interpretation that is correct ( e.g. yours) and another which is incorrect (e.g. the EPO's).

I can point you in the right direction. Go back to CFPH and read his footnote references. I AM NOT SAYING MY INTERPRETATION IS CORRECT. However, as explained by Prescott, the EPC is an international convention which is meant to be interpreted in a purposive fashion. A bit like EU directives and Article 249 of the EC Treaty. Now, if I read the whole of Article 52, for me the framers did intend to exclude computer programs from being patentable. This is also the view of Prescott, and I have highlighted his wording above, it is for him 'an excluded item'. Now, the EPO is not adopting Article 52 in a purposive fashion and this is blatant by the fact, as noted above, we are swimming in software programs which have been patented and from the decisions of the Board of Appeals and the EPO (the above example is just one recent statement which clearly evidences the distortion of Article 52 by the EPO/BA). So, YES I DO THINK THE EPO/BA ARE SERIOUSLY OFF COURSE and WRONG. Prescott also used the word 'wrong' in paragraph 25 when talking about those who thought that 'as such', in relation to computer programs, was meant to mean that a computer program could be patented if claimed together with a physical artefact or process, including a computer. This is the EPO's interpretation of 'as such' as evidenced by their decisions and patents granted and 'as such' they are wrong. By the way, I do not consider individual examiners to be at fault here necessarily. The change in EPO/BA approach has been a gradual one and has, for me, been directed from the top.

You also do not appear, to me, to have picked up on the intricacies that resulted in current EPO practice and baldly state that they are being non-consitutional in their application of the law. Patent attorneys clearly have more to offer the debate than merely administrative details judging from the failure by so many people to understand this very specialised area of law, of which the exclusions are an even narrower sub-specialism. That is my job - to understand the interpretation of the law by the EPO and UKPO and to try to get my clients patents within those intepretations.

Yes, your job is to get your clients patents. Now you believe you have the legitimate right (without there being a presumption of conflict of interest) to get involved in a debate about what should and should not be patentable. I think you have answered your own question.

I am not an economist or a software programmer or a lobbyist, so it is not my place to say whether the current scope of protection afforded to computer-implemented inventions is correct or not - and you will note that I have not done so. I have merely questioned your insistence that the EPO have got it wrong since (a) I have yet to see a precise definition of what you think is "right" and (b) the EPO are not, in my view, saying what you think they are saying.

If questioned, I would admit that I am largely supportive of the EPOs position, but that is largely because I see it as being a vast improvement over the situation in the US - any patent system is better than theirs! I also think that the case law of the EPO (when properly applied, to use the words of Peter Prescott) should not result in the nightmare scenerios you envisage, so am not sure what it is you are objecting to.

It is true that EPO examiners make mistakes (by not properly applying the case law) and grant a number of patents that they should not - the Amazon one-click divisional being a prime example, and I fully expect the opposition to be successful on that case. But the fact that such mistakes occur does not mean that the system is broken, it means that examiners must continue to be vigilant - again quoting Mr Prescott.

Anyway, since neither of us is apparently able to read or understand the comments of the other, I will be leaving this debate now and going off to have a nice relaxing weekend. Hopefully at least one person reading this will be able to understand my points.

I understand your points, I just don't agree with the majority of them. I'm sorry that you can't see through the smokescreen created by the books you read to become a patent attorney. I am also sorry that you cannot see what is straight in front of you, a sea of software patents granted by the EPO despite the clear purpose behind the Article 52 exclusions. Go talk with some software developers, go try and understand the software industry (here, I mean the majority of the IT industry which is made up by SMEs, not IBM, SAP and Microsoft). As you are a fan of science fiction, I suggest you read some sci-fi books and go figure what it might be like if a patent attorney 100 years ago had been able to patent the plot of books, robbing you (or at least reducing the possibility through increasing the barriers to entry) of reading many more wonderful books which have taken similar plots and made them great (and better) stories (without infringing copyright)...now go back to software. Enjoy the journey and when you have seen the light...get back to me. May the force be with you.

Cristian www.lasporg.info

EPLA debate continued

Here is my third post on the IPKat blog in response to earlier comments on my earlier posts:

I am pleased to see my original post has sparked a mini debate. It would be good if you could identify yourself.

In respect of your comments I would briefly comment as follows:

1) My concerns about the current proposals for the EPLA go much further than issues relating to the effect on substantive patent law. If you see my original post, you will see what are ‘some’ of my concerns on EPLA. Substantive law is but one.

2) I really wish (no offence) people would read what I write with care. I do not say at all that patent attorneys’ comments are, to quote you, of ‘no relevance in the EPLA debate’. Far from it. I actually full heartedly agree with what you say about patent attorneys when you say they have a great deal of knowledge about the patent litigation system and that they have a role to play in this debate. If you read my prior posts, you will see that my point is not that patent attorneys do not have a role, they do, it is more what role they should have. Here I think the value of patent attorneys is in contributing to administrative questions regarding the workings of the litigation system and not on the policy on substantive patent law. As Prescott QC said (I paraphrase), the ONLY justification for the granting of patents is that they are for the good of the public. This is a fundamental principle long forgotten or not evidenced by those within the system who make a living from it. The truth is that it should NOT be corporations who have the say (although the reality is different) in what should and should not be patentable. Instead, it is the public (i.e. society as a whole) that SHOULD decide what should be patentable. Therefore, the debate about substantive patent law is a debate for all stakeholders, but clearly some have more of a vested interest than others. Furthermore, it is not right (IMHO) to single out the FSF ‘like’ bodies in that software patents affect ALL companies AND individual developers who write software regardless of licensing/distribution models. It is just that software patents are more of a threat to FOSS simply because of the number of developers often involved and the inherent nature of ‘individual’ (as compared to corporate) contributions to development of many FOSS projects.

3) You ask me what I have against the patenting of algorithms. I think the first thing to say is that you start from (reading your whole text) point ‘a’ on the horizon where point ‘a’ is the assumption that patents are the divine right of ‘inventors’. From a historical study of patents, the truth is very different. It is a decision of society (going back to Prescott QC’s comment on the ratio behind patents) to grant an exclusive and monopolistic right to an inventor (against the principles of an open market and free competition without monopolies) in exchange for the perceived benefit of the furtherance of the arts/sciences as a result of the grant of the patent. The patent system traditionally developed in areas of human endeavour where it was considered that the negative effects of monopolies where outweighed by the advantages of fostering innovation in certain fields which were: a) not protected by other forms of intellectual property; and b) involving areas of human endeavour which involved a significant experimentation cost and trial and error in the physical sphere of unknown results, i.e. applied sciences. As has been cited in numerous reports, governmental studies and research documents, the knowledge based economies such as information technology industries are ill-suited (see my critique on software patents for more details) to the patent system and have already an existing means of protection for ‘endeavour’, being the copyright system, which although not perfect, is far more suited and more economically efficient then the patent system.

Going back to your specific point about algorithms, the answer to your question is an article in itself. However, in brief, it has long been felt that monopolising what are nothing but ‘intellectual processes’ or the application of mathematic principles (i.e. exact sciences, there is no (or insignificant) experimentation costs to the application of exact sciences as compared to the application of applied sciences) was too high a price to pay and did not further the progress of the arts and sciences. As you will see, this is why the EPC excludes mental processes, maths AND computer programs which is, in many ways, a subset of the above, in that the patenting of computer programs involves the patenting of something intangible which has no, in itself, physical manifestation or lengthy or costly experimentation with physical forces which might justify a monopoly grant. Whereas the majority of modern day patents are granted for a (not ‘the’) physical implementation of an idea(s), because computer programs are intangible and not physical, by granting a patent over software you are granting a patent of either maths or functionality (i.e. the ideas behind the program rather than the implementation of an idea). With traditional fields of patentable technology, because there is a patentable physical manifestation, the ideas being implemented ARE ACTUALLY NOT PATENTED, what is patented is instead the SINGULAR PHYSICAL IMPLEMTATION leaving others to freely study the ideas behind the implementation in the physical world and patent OTHER WAYS OF IMPLEMENTING THE SAME IDEAS. With software, given it lacks the physical manifestation (called by Prescott, the physical artefact OR process), what is actually patented is not a SINGULAR IMPLEMENTATION but THE IDEA(S) themselves, meaning that the ideas ARE NO LONGER FREE. This is against the very principles, for example, of the copyright regime, where as embodied in the Software Directive 1991, we are free to study the ideas behind a computer program, SINCE it is in society’s interest that we do so because of the fact that the IT industry has thrived on people being able to use the same ideas and come up with parallel ways (using different source code) to solve the SAME problem (read idea or functionality). Software patents prevent this. When you realise that software (because it is intangible) can be written in MANY DIFFERENT ways to solve the SAME problem, you realise the danger (and hindrance to innovation) that the patent system represents when it, in the case of software, forecloses (monopolises) the actual problem (read functionality or idea also). However, I am not the most eloquent speaker so let me leave you to ponder the following expressions of this principle, one from a German judge and one from a well known campaigner against software patents:

"why should it make any difference whether I run [the ideas] in my head, with pencil and paper or with the normal tool of today's civilisation, which is the universal computer……because the economic rationale behind not granting patents on thoughts applies also here: abstract ideas are, regardless of their applicability to technical problems, produced without experimentation cost, applicable to an infinite range of problems, and replicated at zero cost with no overhead to which patent license fees could be added. The division of the extra cost of patents by the marginal cost (and long-term ideal price) of information goods is a division by zero.” (Hartmut Pilch)

“any attempt to attain the protection of mental achievements by means of extending the limits of the technical invention -- and thereby fact giving up this concept -- leads onto a forbidden path. We must therefore insist that a pure rule of organisation and calculation, whose sole relation to the realm of technology consists in its usability for the normal operation of a known computer, does not deserve patent protection.” (German judge, see footnote 12 of my article in January 2006 for full reference)

Best regards

Cristian

www.lasporg.info

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/

MEPs stupid...EPLA is a good step claim patent attorneys....make your mind up..

Here is my post on the IPKat in response to an earlier posting today:

Dear IPKat

I refer to your post today regarding the European Patent Litigation Agreement.

"Some MEPs have since tabled a motion to scrap the idea, because they think it will be too expensive and undemocratic. Respected UK Patent Attorney Vicki Salmon, on behalf of CIPA, immediately responded:

"Once again we see MEPs who lack a clear understanding of the patent system rushing to stop what could be a sensible step forward. ... "

The EPLA would enable a single European Patent Court to be created, concerning which Vicki said:

"We in the Institute are in favour of such a move provided, of course, the details are practical and do not result in an arrangement that is too expensive".

Although he is a firm believer in democracy, the IPKat sometimes despairs of its ability to address detailed issues such as patent law. If even Members of the European Parliament can't grasp the issues clearly, what hope is there that the vast electorate of the European Union will be sufficiently well-informed to give them a mandate for change? Merpel adds, the MEPs shouldn't be allowed to interfere with the delicate mechanisms of patent law if they can't even decide to ditch either Strasbourg or Brussels and make do with just one legislative base."

On this post I would make the following comments in the hope of trying to present a balanced debate for IPKat readers. The statement that CIPA considers the EPLA would, to quote, 'be a sensible step forward' has to be considered having regard to the position of the CIPA and the fact it represents a vested interest group. No doubt, it would represent 'a step forward' for the CIPA, but although it may come as a surprise to some, patent policy should not be governed by whether something is a step forward for patent attorneys. Furthermore, there are more fundamental considerations as to whether the EPLA is a 'step forward' then simply whether it is: a) practical; and (b) cost effective. For example, is the EPLA the 'appropriate' structure with which to introduce a single patent court in Europe and what will be the effect of the EPLA on the development of substantive patent law?

I strongly disagree with the presentation of MEPs as individuals who are unable to grasp the issues at stake with patent reform. As was shown with the story of the failed Software Patents Directive there is a good understanding amongst many MEPs of the problems with the current patent system in the EU and the proposals put forward by the commission and others to reform the patent system in the EU. If we value democracy, we must accept that laws should be made on the basis of what is in the 'public interest' by those who are directly accountable to the electorate. Here, there are no short-cuts.

There are already significant constitutional issues with the role of the European Patent Office in the existing system adopted by signatories to the European Patent Convention. A number of these issues were raised by MEPs last year and, ironically, the EU Commission itself has expressed concerns about the conduct of the EPO and its active 'policy' role. The constitutional issues stem from the fact that the EPO is not a democratically accountable institution in any modern sense of the word, yet is responsible for granting patents which have an impact on the citizens of signatory states. At present it is an administrative office which also, in granting patents, through the EPO and the Board of Appeals of the EPO, interprets the European Patent Convention. In carrying out this latter function it has adopted an extremely broad notion of 'technical effects' resulting in a de facto extension of patentable subject matter and the granting of more patents. If the CIPA is not convinced by the intellectual ability of MEPs, it may be convinced by the intellectual ability of an English silk, Prescott QC, who stated in his judgment in the case of CFPH last year that:

"[d]espite the prohibition on granting patents for computer programs as such….the EPO has granted more than 40,000 of them"

The EPO has taken upon itself to make decisions which 'potentially' result in the unconstitutional extension of patentable subject matter. As an institution which is not within the EU framework of institutions and which is not democratically accountable in any modern sense of the word, it can do this without sanction. Furthermore, in doing so, it is creating a body of 'potential' jurisprudence emanating from a body which, due its dual function, cannot claim sufficient independence for transparent and ethical law making - it is the body which makes money from granting patents.

I say 'potentially' above because, in the current EPC structure, it is the national courts of the members states who ultimately interpret the EPC and, as Precott QC succinctly expressed last year, the EPO's decisions are not binding in any way on the national courts. Therefore, where we are today, the true impact of the unconstitutional extension of the patent system by the EPO in Europe is not being felt. HOWEVER, with the EPLA, in its current form, there is a strong probability that the de facto extension of patentable subject matter by the EPO could become the reference material for the new single Patent Court outlined in the EPLA.

An objective review of the current problems of the EPC/EPO model leads one to query the CIPA line on the EPLA. Any individual examining the EPLA who is interested in democratic law making should be concerned.

1) The EPLA is a system which is outside of the control of the EU institutions and the democratically elected parliament. It would result in a single court for disputes over the validity of patents issued in the signatory states which is not accountable to an EU institution. In other words, this would create a further institution which has similar issues of unaccountability as the EPO.

2) One of the major burdens of the patent system on competition is the cost of defending (even spurious claims) and litigating patent claims. Therefore, any new litigation agreement between member states has to provide clear cost benefits to claimants and defendants. We have seen no objective and independent impact assessment carried out showing that, for industry as a whole (and not just large companies), a single court would offer cost savings.

3) The idea that a central patent court is beneficial for the patent system as a whole needs further consideration. Supporters of the EPLA try and make comparisons with the central federal patent court in the US. However, a number of US academics are currently questioning the benefits of having one centralised court in the US. More thought needs to be had on such an important issue and this discussion really should take place within the current EU legislative framework which at least has a modicum of democratic control. The issue of a central court needs to fully debated in the context of the Community Patent debate.

4) The current EPLA proposal does not guarantee an independent judiciary. This failure is absolutely critical. Any independent court needs to be staffed by legally qualified members who have sufficient independence from any body which has an economic interest in the granting, preparation of or litigation of patents. This, for anyone who has a remote interest in democracy is common sense but this factor has been overlooked by the supporters of the EPLA. The EPLA proposals, as drafted, would allow for members of the EPO to become members of the proposed single court. There has to be a conflict of interest here. There must be a clear separation of powers between those responsible for the administration of the system and those responsible for determining questions of validity. Furthermore, the language of the EPLA does not go far enough to exclude from the membership of the proposed single patent court others who might have or have had an economic interest in a body interested in the granting, preparation of or litigation of patents.

5) Without proper controls on the selection of members of a single court, there is a real danger that instead of democratically elected institutions such as the European Parliament (which is accountable to the public and hence the public interest) determining what should and should not be patentable, an undemocratic, non-EU and potentially non-independent court could decide the direction of future patent policy in Europe. If the past record of the EPO is anything to go by, where there is a similar conflict of interest and lack of accountability issues, adopting the EPLA could be extremely detrimental to European growth and innovation.

In summary, although at first glance the EPLA appears an attractive 'stop-gap' solution to the currently stalled Community Patent, the current proposals on the EPLA lack the basic tenants of what makes a transparent and democratic law making system. Although there may be a motion calling for the scrapping of the EPLA, there are also motions which call for more time and consideration to be had on the EPLA and for some of the concerns of the existing proposals on the EPLA to be further debated. This is not democracy in 'meltdown' but democracy 'in action'.

Cristian

www.lasporg.info

Don't call me

Today we have another fine example of software patent madness. This time, in a move which reminds me of the Blackberry saga, Net2Phone are pursuing a claim against Skype in the US Courts (why...because they HAVE software patents whereas OFFICIALLY in Europe we do not). N2P claims that Skype infringes on their patent on "point-to-point Internet calling". I think I am going to file a patent for how to tie shoe laces, I'm hoping this one trips up and that the US and some of its companies start to realise that software patents are harming the IT industry not helping it.

See here

The polish pub quiz

The IPKat has a good post dated 24 May 2006 as to the Commission's response to a Polish MEP's question regarding whether the Community Patent will follow EPO case law.

Check it out at www.ipkat.com

Zen and the apple

If initial reports coming out are correct, Creative Technologies is stepping up its fight against Apple in relation to the navigation system on Apple's I-Pod (which Creative claims infringes its navigation system first showcased on its "Zen" player). They are asking for an injunction and unspecified damages in the US courts (no surprise - read 'Europe' also if we adopt the farce that is software patents). This is a text book case of software patent litigation. This is not about innovation. The I-Pod's success has probably very little to do with it's navigation system and more to do with clever marketing, styling and packaging (including the I-Tunes concept). Creative has simply failed to market a product as 'attractive' to consumers as the I-Pod and, "if you can't beat them, sue them" seems to be appropriate here. Here we have what is really nothing more than a mental flow chart for navigation applied by way of a computer program rather than on paper.

more more more IPR please...

I have to hand it to the Commission and some of the Commissioners for their shameless ability to put political interests before democracy. The Commission has lost out twice on the CII directive and more recently on the mutual recognition of patent laws within the EU. However, it is determined, by whatever means, to ensure that software patents become a reality in Europe. In its latest memorandum entitled, "Intellectual Property Rights (IPR) at the heart of the Commission’s job and growth initiative  " issued on 3 May 2006, it pushes the idea that the more patents we have, the more innovation we have. It mentions the failure to pass the CII Directive in a manner which suggests to the reader that this is a further failure for fostering innovation in Europe. Am I feeling guilty for criticising the CII Directive...not just yet. What the Commission fails to mention is that the study it commissioned before the CII directive had very different conclusions as to whether software patents result in more innovation and as many of you who follow this topic will know, the majority of studies in this area which are not sponsored by vested interest groups, actually suggest software patents hinder innovation in the ICT sector. The memorandum is an unsubtle effort to keep pushing for the extension of patentable subject matter, and in particular, software patents dressed in some cosy language relating to costs savings and harmonisation. Cui bono?

The memorandum contains a list of companies with the top number of applications to the European Patent Office. It is not surprising that there are a number of non-EU companies on this list, particularly Japanese and US companies and that the majority of these companies are in the Electronics or software sector. It is not difficult to see how for the EPO, software patents are such an attractive proposition, being potentially a much bigger revenue generator than pharmaceutical patents. As shown in the US, if the logic behind software patents is accepted, 1 piece of software can lay claim to numerous patents whereas this is not the case for a new drug. The scale of applications and therefore fees is much greater for software patents. However, just because it's good for the EPO doesn't mean it's good for us as consumers and the ICT industry.

The Commission is clearly trying to bundle all 'IPR' together so that we don't differentiate between different IPR when considering the issue of innovation. I have been accused of propaganda in the past but this is a wonderful piece of propaganda.

Counting the cost (again)

For those who missed the news last week, Microsoft and Autodesk both lost out in a patent dispute to the tune of US$133 million. The case involved the implementation of anti-piracy devices (software) in the products of Microsoft and Autodesk which were said to infringe the patents of a company called Z4 Technologies Inc.

If we add this to the other sizeable pay-outs in recent months, the ongoing economic cost to the software industry of software patents is self-evident. This time we have US$133 million less to possibily spend on R&D in creating new and innovative software products which benefit consumers and businesses, plus the wasted resource costs in having to defend the patent infringement action. Will there come a time when lawyers will have to turn their hand to software development? Since, the way the US is going (and Europe might follow if we are not careful), there might soon be more lawyers than developers in software companies :-).

Software patents remain a minefield for software developers (particularly to the new entrants to this battlefield), yet whilst we continue to allow some of these mines to be coated in diamonds, the minefield will only get bigger (and the cost of the eventual clear up even higher!)

more info..

Money for nothing...

Well, RIM has finally caved in. Let's add another $612.5 million to the economic costs of software patents at the expense of innovation. This is the cost of the settlement agreed by RIM with NTP. Another sad day in the software patent debacle.

Can I clarify...I DO EXIST

I have posted below my initial response to Alex Horns (Patent Attorney) interesting comments on my Groklaw article which I have also posted on his blog:

His comments can be found on his very informative blog at http://www.ipjur.com/2006/01/story-time.php3

Alex

Thanks for your constructive comments. I am very real I can assure you of that. I am sorry that my name sounds 'unreal' and I am sorry that you don't agree with my line of reasoning. Everyone is entitled to their opinion, ideas are free to circulate for the benefit of us all (although not if those promoting knowledge patents have their way).

I am disappointed that you might think this is propaganda rather than an article written by a lawyer who unlike many IT lawyers has actually worked with those people that make software, developers. I have listened to their concerns and those of the industry and seen the damaging effects of patent litigation in economic terms (add up the costs alone from the settlements last year in the US) on the industry irrespective of the social and moral problems of locking down ideas.

I do not pretend to be an expert. I recognise that there are many people in this area with much more expertise than me and I am always happy to be proved wrong. I would like to give your detailed comments the consideration time they deserve and where I feel you are right and I am wrong I will be happy to post publically these comments.

Unlike you Alex, I don't derive any income from Patents. The article was written from the heart and in my own time.

As for my blog, it was set up only recently because I have a day job which does not involve making money at the expense of harming long term innovation and I am a part-time blogger and no more.

The reality of a person is not measured by whether they appear on a google search or not. I do exist, I am not a paid puppet of the FFII (unlike certain rather infamous lobbying organisations of pro-software patent organisations) and I am sure my previous employers and also old clients would be happy to provide you with all the "evidence" you need to confirm my existence and also the statements I made in the article about why I wrote the article.

Finally, should this not be sufficient, I would be more than happy to buy you a coffee (I don't think you can expect me to buy you lunch just yet) if you happen to be in my part of the world. I am posting this comment on my blog as I notice 'comment moderation' is activated.

Kind regards

the very real Cristian Miceli

My article is published and other news

Happy new year to everyone.

After several weeks of waiting to see if Computers & Law would publish my article I finally gave up the ghost and asked Pamela Jones of Groklaw if she would publish the same on Groklaw. Well the article is now live:

Here...

The other good news, which I thought made quite interesting timing, was that Sir Robin Jacob, a well-known IP Court of Appeal judge in England came down against software patents in his talk organised by the Society for Computers & Law (who publish Computers & Law) last week in London. For an article discussing what he said, see here

Let's hope 2006 is a year where we put the interests of the IT industry first and the interests of a few second....one can but hope.

1+1 = 3

Anyone wanting some fun should read some of the letters received by the Register regarding the Business Software Alliance's latest research study on software piracy and the economy.

The phrase "lies, damn lies and then statistics' always comes to mind when I see another BSA sponsored research study published. It's not the first time this year that its research figures have been questioned. Just before the EU Parliament was due to vote on the Computer Implemented Inventions Directive earlier this year out popped a study about patents and SMEs paid for by the BSA whose figures were also attacked in the IT media.

The Register letters can be found here

Apples and Blackberries - a patent fruit salad

Looks like after blackberries, it's the apples' turn to turn sour. That's right Creative looks to be on a war path to sue Apple with regard to its iPod in the US for infringement of a software patent that Creative successfully obtained earlier this year for its media player. The patent in question is a software patent for it relates to the user interface on Creative's media player and more specifically the music navigation system. This is an example of patenting functionality so that no other company can use the same functionality (regardless of how implemented). The iPod's system may be written in a completely different language and not share the same code, but with the software patent in the US that Creative has obtained, Apple could be prevented from using the same functionality or be required to be pay licence fees to Creative.

Without software patents, the iPod which so many have come to love would not be troubled and Creative would be required to compete in an open market with Apple, with the best overall product winning the battle. At present, without the prospect of a software patent litigation, the iPod is said to be streets ahead in terms of market share. Patents are meant to be granted to foster innovation - this is just another example of how, when it comes to software patents, this is not what they achieve. Creative's patent is not about innovation. It is being used as a weapon to damage their market rivals over a basic and non-tangible user interface which allows you to chose your music. Ultimately, this kind of battle will only help Creative, not us, consumers. We may find that next Christmas, the iPod may cause a greater dent in our wallets!

For more on this story see here

Getting back to blackberries, the Research in Motion (makers of the Blackberry handheld) vs NTP (owners of software patents) saga continues to be a wonderful case study on the uncertainty and commercial damage caused by software patents. Gartner, the leading business intelligence company, is advising that companies (in the US) should delay any business critical deployment of Blackberry reliant applications until the patent battle is over....

For more on this story see here

Quote of the Day

"Globalisation will force us either to sink or swim. If comparisons with the US are not enough

to galvanise the EU into action, then the ever fiercer competition from the large Asian

economies should issue a wake up call."

Viviane Reading - "Taking-Up ICT in Europe", 30 November 2005 (see here)

Article on year's developments

I have sent my article about software patents and the year's events to SCL in the hope that they will publish it. I will keep you posted on progress.

SCL can be be found here

I intend in the next few days to set up a page listing supporters of LASP. The idea is to build up a list of lawyers, law students and academics who are broadly in line with the aims of the site, i.e., to prevent the patenting of software (and also business methods). I have a few issues that I need to iron out before such a list can go live.