The debate about software copyright vs. software patents is not a debate about whether the programmer should be entitled to control the use of his intellectual achievement but about where this achievement lies -- in the functionalities or in their creative combination into a complex work -- and how it can be protected in such a way that the protection does not defeat itself.
For example, what the reader is currently reading is a textual composition of concepts, such as argumentation chains and rhetorical forms. Much effort went both into designing these concepts and combining them into a structured work. Copyright protects the orginal combination of concepts which defines this work: we hereby grant the reader a license to produce integral facsimile copies of this article but we forbid plagiarism or reusing parts of this article without permission. Copyright does not protect however the innovative or less-innovative concepts which this article in based on: readers are free to write original articles based on the same argumentation chains or rhetorical forms. The main argument for not granting monopolies on concepts or ideas in our societies is: promoting creation. Copyright would actually become quite useless if authors had to ask permission to hundreds of concept owners each time they wanted to create and publish an original work. Protecting ideas and concepts would just act as a barrier to creation.
Just like this article, a computer program is also a textual composition of concepts. Rather than argumentation or rhetorics, computer programs are based on logical functionalities. Software copyright protects the orginal combination of logical functionalities but not the logical functionalities per se. Advocates of software patents suggest[8] that designing a functionality is the important part of a computer program, the rest consisting mainly of easy "coding". Opponents to software patents on the contrary argue[9] that logical functionalities tend to be fairly easy to design, whereas the bulk of the skill and sweat of a programmer goes into weaving these logical functionalities together into a well-formed tissue[10]. In either case, subjecting software to both patents and copyright means allowing the lesser achievement to stand in the way of the greater one, thereby risking to stifle innovation rather than promote it.
In order to understand what a software patent is, one should first understand how patents work. A patent contains two important parts:
- 1. Description:
- This part teaches the person skilled in the art how to rework the invention. For example it may disclose how to bring about a certain chemical reaction (process) and obtain a certain result, e.g. a molecule (product).
- 2. Claims:
- This part tells the citizen, usually a commercial competitor, what kind of things he may not do. The claim section typically consists of a main claim, which describes the inventive teaching in its most pure form, and a series of "dependent claims". The main claim usually refer to a process, such as a way to bring about a particular reaction. Some of the dependent claims may refer to products, such as the molecule produced by means of the reaction. Dependent claims are more or less redundant. They do not add much new teaching, but rather specify particular objects which can be monopolised based on the teaching of the main claim. This redundancy can serve the patentee as a line of retreat in case his claims are challenged by prior art and need to be narrowed down.
Claims are the most important part of a patent since they define how the patent may be enforced in case of dispute. For example, new applications of an existing patented molecule may be claimed in a new patent by another inventor. The owner of the initial patent may produce the patented molecule but will need a license in order to be allowed to use it for his newly patented application.
One should note that patentable inventions in chemistry, mechanics etc. may contain in their description some steps which are achieved under program control. Such inventions are not considered here to refer to software innovations, as long as the invention-relevant problem solution involves physical causality and not merely logical functionality.
Patenting software innovation often leads to patents where the teaching in the description and the claimed objects are only loosely related to each other.
- the teaching may consist of a series of steps to logically transform numbers, data or other schematic entities (algorithm, functionality, mathematical function, data format, communication protocol, language)
- the claims may refer to "methods" (ex. image display, medical diagnosis, ressource allocation, fuel saving, steel cutting, oil drilling), "systems" (ex. programmed computer, integrated circuit, telephone, missile), "computer program products" (e.g software on disk or offered for download), or even computer programs as text structures independent of storage media.
While the description and the main claim often disclose an abstract rule of organisation and calculation, the dependent claims may describe a wide range of concrete objects or processes. Usually the description will use terminology of microelectronics (ex. "associative memory") or "software engineering" (ex. "database") rather than their mathematical equivalents (e.g. "indexed set") or their business administration equivalents (e.g. "directory book"). In practise this does not restrict the application of the patent claims, because software is the standard way of putting program and business logic to work, and the metaphorical language of "software engineering" is an equivalent of mathematical language. Where this still is not enough to cover a competitor's similar solution, patent courts may further enlarge the claim scope by applying the "doctrine of equivalence".
Thus, software patents on the description side teach us nothing but intellectual methods (logical functionalities, rules of organisation and calculation), while on the claim side they may succeed in monopolising a broad range of material objects and processes.
The legal rules of patentability in Europe are quite simple. The European Patent Convention (EPC), which defines substantive patent law in Europe, contains explicit exclusions to patentability in the field of software, mathematics and other abstract innovations. The EPC does not however exclude inventions which make use of software, mathematics, etc. The drafters of the EPC convention had in mind the fact that technical inventions (e.g. in chemistry, mechanics etc) which imply the use of a computer should be patentable as long as it teaches us a new relation of physical causality rather than of logical functionality. This approach was clearly explained in the EPO's
Examination Guidelines of 1978, written shortly after the EPC went into force and the EPO was founded:
Several of the exclusions in this list comprise abstractions as well as materialisations thereof (... a computer program as an abstract entity or defined in terms of a process for operating a computer or as a record, e.g. on magnetic tape). ... A computer program may take various forms, e.g. an algorithm, a flow-chart or a series of coded instructions which can be recorded on a tape or other machine-readable record-medium, and can be regarded as a particular case of either a mathematical method (see above) or a presentation or information (see below). If the contribution to the known art resides solely in a computer program then the subject matter is not patentable in whatever manner it may be presented in the claims. For example, a claim to a computer characterised by having the particular program stored in its memory or to a process for operating a computer under control of the program would be as objectionable as a claim to the program per se or the program when recorded on magnetic tape.
The EPO has never had a definition of what is "technical". The question was treated as a matter of examiners' intuition. "It is hard to define what is a camel, but when you see it you know it" was one common excuse for this lack of rigor. Yet there seemed to be a reliable consensus of customary law on what is technical. German courts were not satisfied with intution and created a definition, which has been in use for 30 years now:
An invention is a teaching on how to use controllable natural forces to achieve a causally overseeable success which is without mediation by human reason the immediate result of controllable natural forces.
If applied seriously, this rule excludes any patents on what German courts
call "rules of organisation and calculation" or "programs for computers". However applying this rule in practise is not always easy. The EPO Guidelines of 1978 exhort the examiner to
disregard the form or kind of claim and concentrate on the content in order to identify the novel contribution which the alleged invention claimed makes to the known art. If this contribution does not constitute an invention, there is not patentable subject matter. This point is illustrated by the examples ... of different ways of claiming a computer program.
Thus, even if a technical process of
cutting steel is claimed, there is not necessarily a
technical invention. The examiner must disregard the claim language and look where the claimed contribution really lies. Are the physical intricacies of steel part of the problem solution? Or is there only a logical problem, which is already solved at the level of logics before it is applied to steel in the same way as a method for adding numbers may be applied to apples or tomatoes? In the latter case there is no technical invention and therefore nothing to examine for "novelty" and "inventive step". This examination method of seeing through the claim language and penetrating right to the core of the contribution, also called "core theory" or "differential examination", has helped patent offices to avoid a lot of tedious and costly searching work.
Meanwhile, the EPO has however adopted a different approach[11] to the EPC. In 1985, the EPO deleted the above-cited definition of "computer program" from the Examination Guidelines and replaced it with ambiguous wordings. The intuition on what is technical also faded away. In 1998, Mark Schar, a leading EPO judge, redefined the "technical invention" as "any practical and repeatable solution", explicitely rejecting the German definition which required a direct use of physical forces. Thereby he correctly described the EPO's de facto practise of patenting business methods and mathematical methods of even the abstractest kind[12]. Since the early 90s, patents for such methods have regularly been granted, as long as they were dressed up as "system and process for ..." and no explicit mention of "computer program" was made in the claims. Starting in 1997, even claims to "computer program products" were granted, and "computer programs" were no longer considered to be "computer programs as such" if they could be said to have a "technical effect" such as running on a computer, or a "further technical effect", such as helping to improve computing efficiency.
However there is also a tendency in the EPO to refuse at least some software patents on grounds of not having a "technical effect". This was the case with a "pension benefit system" in 2000. In such cases, the EPO first conducts a prior art search. Then, in the context of assessing "inventive step" (non-obviousness), it demands that there be a "technical solution to a technical problem", based on EPO intuitions. In a recent press release, the EPO has furthermore signalled that it is overloaded with search requests for business methods and therefore will not conduct novelty searches if it is evident from the beginning that the contribution is not "technical". This again seems to indicate a certain willingness to return to "differential examination", i.e. the common sense of looking for a technical teaching before examining the novelty of that teaching, and to return to an understanding of "technical character" which no longer includes all "practical repeatable solutions" but on an intuitively perceived "technical character", which is somehow vaguely related to the mind-matter boundary and to Art 52 EPC. Therefore, at present, words should be carefully chosen whenever filing software patents at the European Patent Office. For example, it is better to use the word "database" than equivalents like "indexed set" or "directory book"[13].
One should note that software patents granted by the European Patent Office have currently little value. Disputes show that high level national courts have largely enforced, even recently, the original interpretation of the EPC which excludes software patents. Some national judges, patent examinors, academics and patent attorneys, all known for their deep involvement in the patent system, have publicly expressed[14] their worries that the current practice of the EPO could be illegal. Owners of European software patents tend not to use and enforce them because the risk of having the patent voided by a national court is much too high. This situation may sound absurd[15] but it has a great advantage since it creates some kind of self-regulation which prevents abuses from software patent owners.
Typical European "software patents" are really patents on logical functionalities. Their main claims are directed to ideas such as
controlling one computer by another,
reading data from a medical data input source and directly displaying an analysis result to the patient or
connecting buyers to potential sellers by letting them specify an acceptable price range through an input terminal. These claims represent at the same time a functionality, a business idea, a problem solution, a programming problem and a computer program. Apart from prior art there is hardly any limit to the
breadth and triviality of such claims. This is because computer programs, unlike traditional patentable inventions, are not limited by the constraints of matter (physical causality) but only by the laws of the human mind (logical functionality).
The only limitation currently lies in the requirement that the business method must be automatable, i.e. "repeatable" according to Mark Schar's invention concept[16]. Thus, while the EPO granted a patent on the principle of learning languages by comparing student pronounciation with a digitally stored master sample, this covers only program logic which automates this principle, not application of the principle by human interaction between teachers and pupils.
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