[Commons-Law] Re: [Fwd: software patents: apparent good news forIndia]

[Seth Johnson]

Read this bizarre EPO case.  In the EU, they have interpreted the
phrase "as such" in incredibly bizarre ways, to the extent that
they have actually reversed the meaning of the law, with says
computer programs as such can't be patented.  Or if you don't
want to swim in primary source legalese, read the second link.

> http://legal.european-patent-office.org/dg3/biblio/t970935eu1.htm
> http://wiki.ffii.org/Lenz050417En

Basically, the EPO decided that they had to cook up a weird
notion of software-not-as-such, just to let IBM get a patent on a
software innovation (they overlooked the key question, which is
why software is not appropriate for patenting).  They decided
that software that has a "technical effect" is not "software as
such."

This perverted reading of the European Patent Convention is
exactly why they are trying so hard to pass the "Directive on the
Patentability of Computer-Implemented Inventions" in the EU: to
legalize the illegal patents they've been granting on the basis
of this case law.  They're not, as they should be, examining the
validity of the case law and of introducing software patents.

But there's really not way around it: software "as such" is
software.

The thing that really tells the real story here is that the
*REFUSE* to just declare that the software in a
"computer-implemented invention" is not covered -- that the
invention is the concrete process, and not the software
controlling the process.

The fundamental error is that software is pure (it's more than
abstract, like a physical law is abstract, such as e=mc^2 -- it's
abstract in a pure sense, completely independent from any
concrete particular, the way logic or math or geometry are).  So
they're letting people get patents on software in a device --
when by its very nature *no software is confined to a device!* 
Any pure algorithm is entirely independent of the particular
device it's used in, so they're actually giving people the
ridiculous power to prosecute programmers for using pure
reasoning.

The news from India is good news, but it's not deterministic. 
Basically, India refused to incorporate language that would have
led them further in the direction that the EU is going.  It's not
the same as a definitive policy that says it will not go in that
direction, though.


Seth




Aniruddha Shankar wrote:
> 
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> 
> Lawrence Liang wrote:
> > So if the left is saying that the amendment to expand has been stalled has
> > succeeded, then that is correct but if they seem to be suggesting that there
> > will be no software patents then they are completely mistaken, that battle
> > we have already lost.
> 
> Well, the plot thickens. I called up A K Gopalan Bhawan in New Delhi,
> the HQ of the CPI(M), which publishes People's Democracy. I just got off
> the phone with Dr. Amit Sengupta, to whom I was referred. He is of the
> opinion that the 2002 amendment, which states that "a mathematical
> method or a business method or a computer  programme per se or
> algorithms" is "non-patentable subject matter" should be interpreted to
> mean that software patents are not grantable. His reasoning is simple -
> computer programme = software, i.e, software comes under non-patentable
> subject matter.
> 
> Lawrence, I'm a a bit sheepish about asking for this but can you explain
> how s/w patents can be granted after the 2002 Amendment?
> 
> cheers,
> K
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