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The EPO's Reductio ad Absurdum
October 27, 2008
Posted by: Glyn Moody
I've written a lot about the danger that software patents pose to open source. The problem is that intellectual monopolies like patents are fundamentally incompatible with the idea of unfettered exchange of ideas, and the possibility that software patents might be strengthened within the European Union is a serious concern.
Court decisions on whether software patents are permissible within Europe have see-sawed wildly, with some decisions in favour being counterbalanced by others that confirm that software cannot be patented “as such”. Unfortunately, those meaningless weasel words “as such” have provided a tiny opening for proponents of software patents – typically large companies that want to use intellectual monopolies to stifle competition, and software patent lawyers who want more lucrative business – that the latter are constantly trying to widen.
Here's the latest attempt, which takes the form of a referral of a “point of law” concerning software patents by the President of the European Patent Office (EPO) to the EPO “Enlarged Board of Appeal”, something that seems to happen quite rarely. Now, you do not have to be a genius to see the problem with this; essentially, the EPO is asking itself whether it wants to widen its own jurisdiction, increase its power and boost its income by allowing software patents. Unless the Enlarged Board of Appeal consists entirely of self-denying, altruistic masochists, I think we can all guess what the answer will be.
Even if the outcome is pretty much a foregone conclusion (modulo the legalistic justification for it), the referral is an extremely important document because it lays bare with laudable clarity the fundamental problems with the idea of software patents, and the insane linguistic and logical contortions that those in favour of them resort to in an attempt to get them accepted.
The main stumbling block for software patents in Europe is Article 52 of the European Patent Convention, which states:
(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
(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)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.
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About the author
Glyn Moody Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).
Comments received
Bob Parker said on Tuesday, 28 October 2008
I just hope that your lucid argument is heard where it matters!
Glyn Moody said on Tuesday, 28 October 2008
Thanks. I'm not optimistic....
Alex said on Tuesday, 28 October 2008
Why is it so hard. Clearly software is a language, something expressed as language is no patentable "as such" but something described in language (like a new process to refine something) is not the words themselves.
Glyn Moody said on Tuesday, 28 October 2008
That's not my understanding. The "as such" refers to those constructs in the language of software, not just the language itself, because they are in fact nothing but mathematical algorithms of varying complexity. That's why there is this insane attempt to find some chimerical "real" effect beyond that *can* be patented.
Brent Hannah said on Wednesday, 29 October 2008
It's mentioned twice in the patent convention
(a) discoveries, scientific theories and mathematical methods and
(c) .... and programs for computers;
It seems quite clear that programs cannot be patented, and for reasons that were apparently clear when the document was drafted. I don't understand how the issue can even be up for debate. (OK yes I do - Money)