Be careful with this, according to the Debian patent FAQ prepared by Software Freedom Law Center (http://www.debian.org/reports/patent-faq) you can get tainted by reading patents:
Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first.
That said, I'm happy to live and work in Europe where we don't need to deal with this crap.
Unfortunately, you still need to deal with this crap, thanks to the Patent Cooperation Treaty, and more broadly the Paris Convention. While it goes without saying that neither of these treaties means that a U.S. patent is enforceable in Europe, a party with deep enough pockets can file an international application in all the Paris countries, entitling them to the protections afforded by those countries. While the PCT does not mention anything about patentable subject matter in international applications, you still need to be familiar with your jurisdiction's patentability requirements.
Thankfully, Art. 52 of the European Patent Convention is pretty sensible in that it does not regard discoveries, scientific theories and mathematical methods, aesthetic creations, and "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" as patentable subject matter.[1]
We have softpats in UK and rest of Europe too. Indeed Europe is more liberal than UK. Also, depending on the field some discoveries (gene sequences) [sort of] and mathematical methods [definitely, eg codecs, compression algos] get patented. The important thing is that in Europe there needs to be what used to be called a "technical effect". That is not just software but software with some real world outcome, eg if your software gives you longer battery life then that aspect of the software is patentable.
As for PCT. Patents enter the national or regional phase and get examined against the local patent law. Some countries may be inclined to rubber stamp already granted patents (saving time and money). Certainly USA searches for PCT used to be the only ones that were guaranteed _not_ to be thorough!
I was referring to business method patents, not software patents. Art. 52 paragraph 3 clarifies what's in paragraph 2:
(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such (emphasis added)
This is where I imagine much of the confusion lies. My interpretation combined with a brief search on google seems to indicate that software could make its way into patentable subject matter if it's a subset of a larger system, but not if its the sole "invention" claimed in the patent.
In other words, if you have a hardware device running embedded software, you could patent the device, including in it "programs for computers." Thus, Art 52 doesn't mean that all inventions including computer software are, as a matter of law, not patentable.
Correct. The way it is limited may of course depend on the local law. For example in Finnish patent law only "real things" can be patented, not products of human intelligence, which limits stuff like algorithms, software, business models etc. outside the scope of patentability.
There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked:
>There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked:
It's somewhat complex, but in general most of the contentious US software patents wouldn't be valid in the EU, which is why Europe has only seen a handful of software patent cases over the last decade.
Imho the best example for this is that the Motorola Droid comes with multi-touch features in Europe, as opposed to the Droid of all countries were Apple holds the multi-touch patent.
I don't know about Europe, but in the US "Droid" refers, specifically, to an Android device offered by Verizon; and, it is an exclusively licensed trademark by them to use in this context by Lucas.
What we really need is a crowd-sourcing platform for prior art research
Something where someone could submit a piece of prior art and for each of the claims in the patent describe how the prior art invalidates that claim. Plus some sort of discussion forum for people to discuss the prior art.
A few companies did launch in this space about a decade back (offering bounties that would be paid by companies getting sued over the patents), but no-one seems to have really succeeded in gaining traction.
I actually wanted to create something like this a few months ago, but the idea never got any momentum. Instead, I've been working on software that facilitates prior art search by semantically analyzing "literature," generally. I'm primarily focused on using genetic algorithms to construct a complex search query (compatible with LexisNexis/Westlaw) to find even more prior art (in the form of research articles and whatnot) -- not just patents. Luckily, every patent issued since 1976 already has a full-text version, and there are OCR'd versions of the patents from around 1910-1976 available on google. Unfortunately, academia is much larger than just the patent database, so it's important to broaden our searches further.
I was hoping to use this program to build support for, and ultimately raise enough money to request, ex parte reexaminations of issued patents.
Would any of you have interest if I kept pushing for that idea?
Good question. Right now, Westlaw charges something like $100 per search in ALLCASES, which is their database of all federal and state court opinions ever written. Just to retrieve a single document by citation is something like $10.
The general trick is to try to craft a very broad 'initial' search that will encapsulate all of your results; you can create sub-searches within that set of retrieved documents (limited to at most around 3,000) at no additional cost.
I just checked PAIR and as of March 5, 2011 it's with an examiner. Most recently, on June 12, it looks like the USPTO wants them to restrict the claims in the patent to a single independent and distinct invention; i.e., it doesn't look like they'll get their way with having their patent broadly cover all forms of reward.
The problem with paying rewards for prior art is that it discourages community collaboration, finding prior art is a mix of inspiration and perspiration and by incentivizing everyone to work alone it actually substantially decreases the chance of building a strong prior art case.
I've been thinking on this area and my conclusion is to do the simplest thing possible: just publish blog posts, github dumps, etc of your prior art...tag it as #prior-art and let twitter and google help you find stuff.
Nope, the patent office should adopt a more sensible policy on what can or can not be patented. As another HNer pointed out in this thread, the European policy is pretty good:
1. Software for a general-purpose digital computer is equivalent to a mathematical algorithm, and therefore not statutory material for a patent.
2. If the all the novelty and non-obviousness in a claim is contained in software, then that claim is not patentable.
3. Software as an element of an otherwise patentable claim does not make the entire claim unpatentable. This is nothing more than the complement of 2. Don't read it in any way inconsistent with 2.
4. Don't read 3 in a way that's inconsistent with 1 and 2. Pay attention to 1, 2 and 3. They are the policy.
Like my policy? I hope so, but they'll never listen to it. If they don't listen to the Supreme Court, they won't listen to anyone. 1 is Benson, 2 is Flook, 3 is Diehr, and 4 is Bilski.
I'm not for software patent but I always found the "Software is a mathematical algorithm" thing annoying. I don't think it's a really good argument against software patents.
On the contrary. Since software source code is (at a fundamental level) math, it is purely informational in nature. One of the goals of the patent system in the first place was so that information would be shared rather than kept secret. The patent holder makes the information public, and in exchange he is granted a temporary monopoly over the physical manifestation of the information. But not the information itself.
This makes it really strange then when you attempt to patent a software algorithm. What is the physical part? Am I allowed to make a book containing original descriptions of patented algorithms? How is that different from sharing code on the web?
Patenting software algorithms is akin to patenting speech itself, which is protected under the first amendment. So I think the "math" thing does matter. A lot.
I just don't believe most software patent fit the description of an algorithm. The real problem with them is they are patents for idea an not for implementation as an algorithm might be considered.
When Amazon patented A 1 click button. They were not talking about an algorithm, they were talking about the idea of having a button which purchases the object I want with 1 click. Implementation of this is wide, this patent tells me nothing of what the process behind the patent should be. If it did then you could get around it. That's the fundamental issue with those patents as you've pointed out. I can't figure out what is or isn't an implementation of this patent because no real useful implementation instruction was given.
On the other hand The Marching Cube algorithm patent does fit what you are talking about, the is instruction on how to implement the algorithm and those kind of patents have some issue for sure too. The claim against it was that it's a completely obvious way to solve the problem. There are alternatives to this algorithm such as the (http://en.wikipedia.org/wiki/Marching_Tetrahedrons) which is just redoing the same thing another way, so it's at least better to me than the 1 click patent.
Software patents in general are wrong, I'm not arguing against that but saying all software patents do is patent algorithms is not strong enough an attack in my view. When people will look at it they will see putting multiple algorithms together to solve a problem in a non obvious way is in a way no different then putting a bunch of smaller components together to create a new device. I don't believe patenting either really helps promote innovation. (I'm pretty much anti all patents).
Computer programs are constructivist mathematical proofs. Why is this annoying? Why isn't this a good argument against software patents? Should I be able to patent a mathematical theorem and its proof?
Many, if not most, claims in SW patents are broad enough that they needn't specify if they are in SW or not. Almost any SW patent can be viewed as running entirely in HW.
On a small tangent, does someone maintain a graveyard of software patents as they become invalidated? Since there are lots of duplicate patents, this might be helpful when people need to defend against patent trolls.
Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first.
That said, I'm happy to live and work in Europe where we don't need to deal with this crap.