Another Attempt To Bring In Software Patents In Europe

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Re: [uk-parl] Judge rules computer programs can be patented

David Tomlinson wrote

I would like to expend upon my opening comments:

What makes the judgment incompetent, is the same thing that made Lord Triesman incompetent, a failure consider a wide public interest, and the capture of the EPO by the proponents of intellectual property, not to mention the abuse of clear language.

From Astron.pdf or (

Para 10. 10. This appeal turns on the scope of the prohibition contained in section 1(2) of the Act. This implements Article 52 of the EPC, which reads: "(1) European patents shall be granted for any inventions which are susceptible of industrial applications, which are new and which involve an inventive step. (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: a. discoveries, scientific theories and mathematical methods; b. aesthetic creations; c. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; d. presentations of information. (3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such."

Para. 13. "The Board considered that the combination of Article 52(2) and (3) revealed the legislators did not wish to exclude all computer programs from patentability but only those which were programs for computers as such."

Para 39. More Humpty - 39. In short, the Board appears to have found that any program on a carrier has a technical character and so escapes the prohibition in Article 52 following Hitachi. In addition, this particular program had the potential of creating a further technical effect which was more than would result from the running of any program on a computer, and so also escaped the prohibition following IBM/Computer Program Product. The Board then proceeded to consider inventive step. However, in doing so, and in contrast to Pension Benefit and Hitachi, there is no express indication it put to one side non-patentable subject matter.

Para 44 (iii). 44. Having rejected the reasoning of the "trio", the court observed it was bound by its earlier decisions in Merrill Lynch, Gale, and Fujitsu and then described the following approach as the one to be taken: i) properly construe the claim; ii) identify the actual contribution; iii) ask whether it falls solely within the excluded subject matter; iv) check whether the contribution is actually technical in nature.

Para 52. In all these circumstances I have reached the conclusion that claims to computer programs are not necessarily excluded by Article 52. In a case where claims to a method performed by running a suitably programmed computer or to a computer programmed to carry out the method are allowable, then, in principle, a claim to the program itself should also be allowable. I say "in principle" because the claim must be drawn to reflect the features of the invention which would ensure the patentability of the method which the program is intended to carry out when it is run.

We have gone from a clear exclusion para 10, through mind reading worthy of Humpty Dumpty (Through the Looking Glass) (Para 13) to a complete reversal of the law in 52 paragraphs. I do not understand how any Judge could support the abuse language and meaning of as perpetrated by the EPO in para 13, or considering the nature of computer programs find them outside the mental acts or mathematical methods (Para 39) and arrive by no matter how many judgments at a reversal of the clear meaning of the law (especially given the failure of computer Implemented inventions CII), or fail to recognise the public interest in keeping mathematics and mental acts in the public commons.

"Against all expectations, the final vote on the European software patents directive was postponed this afternoon. The Polish Minister of Science and Information Technology, Wlodzimierz Marcinski, made a special journey to Brussels to demand that the directive be dropped from the agenda.

According to the FFII (Foundation for a Free Information Infrastructure), Mr Marcinski felt the trip to Brussels was neccessary because of the pressure Poland's permanent representatives were under to accept the draft as it was."

No escape from Art 52. All computers are made from transistors which form gates (AND, OR and NOT) or (NAND, NOR and NOT) which can only perform boolean operations, the substance is that computer programs cannot do anything other than perform logic operations, and therefore can not escape the realm of mental acts or mathematical methods Art 52 and Para 44 (iii).

'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you /can/ make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

The wider context is that like language, mathematics has to escape the scope of the private realm (patents), see Professor (Law) Lessigs arguments in the Future of Ideas:

"We have always described as "commons" both rivalrous and nonrivalrous resources. The Boston Common is a commons, though its resource is rivalrous (my use of it competes with your use of it). Language is a commons, though its resource is nonrivalrous (my use of it does not inhibit yours).6 What has determined "the commons," then, is not the simple test of rivalrousness. What has determined the commons is the character of the resource and how it relates to a community. In theory, any resource might be held in common (whether it would survive is another question). But in practice, the question a society must ask is which resources should be, and for those resources, how."

(Free PDF from above URL)

Software Patents are not in the public interest, as indicated by the 2007 Nobel prize for Economics. "The European Commission has been openly pushing for the legalisation of software patents with the Software Patent Directive in 2004/05 and by its support for the European Patent Office (EPO)'s proposal for an European Patent Litigation Agreement (EPLA) in 2007. The FFII was among the leaders of successful campaigns against both attempts to open the floodgates to software patents in Europe."

Paper: Bessen, James E. and Maskin, Eric S., "Sequential Innovation, Patents, And Imitation" (January 2000). MIT Dept. of Economics Working Paper No. 00-01. Available at SSRN: or DOI: 10.2139/ssrn.206189 <>

"*Abstract: * How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980's provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry."

See also:

"We provide evidence below that software patents have more severe boundary problems and generate greater litigation costs than most other patents. Software patents tend to perform badly because the associated property rights are often expressed quite abstractly. The problem of mapping words to technology is difficult for any kind of technology, but it is especially difficult for software inventions because of the abstract nature of the technology. The problem has been made worse because when the courts have considered software inventions they have relaxed patent law doctrines that work to limit abstraction in other areas of technology. As a result, patent-based property rights to software inventions are not tethered to a specific device or to a specific physical or chemical process. Ironically, verbal descriptions corresponding to precise mathematical representations may be ambiguous. This is because of the inherent abstraction of the mathematical representations."

I would recommend the following to Lord Triesmans successor, on the economics of Intellectual Property: Lemley, Mark A., "Property, Intellectual Property, and Free Riding". Texas Law Review, Vol. 83, p. 1031, 2005 Available at SSRN: or DOI:

"Abstract Courts and scholars have increasingly assumed that intellectual property is a form of property, and have applied the economic insights of Harold Demsetz and other property theorists to condemn the use of intellectual property by others as "free riding." In this article, I argue that this represents a fundamental misapplication of the economic theory of property. The economics of property is concerned with internalizing negative externalities - harms that one person's use of land does to another's interest to it, as in the familiar tragedy of the commons. But the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market. From this core insight, I proceed to explain why free riding is desirable in intellectual property cases except in limited circumstances where curbing it is necessary to encourage creativity. I explain why economic theory demonstrates that too much protection is just as bad as not enough protection, and therefore why intellectual property law must search for balance, not free riders. Finally, I consider whether we would be better served by another metaphor than the misused notion of intellectual property as a form of tangible property."

I hope that Lord Triesmans successor has a broader view of Intellectual Property and the Public Interest, rather than capture by special interests, a problem that also afflicts the EPO and the Judge in this case.

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> David, I'd like to add a reference to your post and references, only the mailing list is not open to non-registered users.
> As such I'd like to duplicate/copy your post to a wiki page and reference on .
> May I?
> tks,
> Tim Rue

I assembled an argument, you don't need my permission to link to it.

However, you are welcome to use my material (not quoted) the quoted material is available from the relevant URL's. You can reproduce the whole if you wish, as the abstracts are still abstracts, and you have permission for my comments (as I understand the copyright law).

Powerful forces want to change the law, but they failed with the CII and should not succeed through the European Patent Office.

Here is a better reference to CII's

The Source for the Digital Logic was "Understanding Digital Electronics", by Gene McWhorter, Texas instruments 1978. I did not quote directly from it. For example a NOR gate requires three MOS-FET transistors, and a NOT Gate two.

The early 50's saw the development of the transistors, through the early sixties (10 gates), mid sixties (100) gates, Late Sixties (1000 gates) currently 2bn (many memory)

Note: Diagram on right is a field-effect transistor, as used in complementary metal oxide chips (CMOS)

Here is a basic course in digital electronics I found on the web, I don't know the author, and cannot give permission for use.