Court date for challenge to 'new' patent rules
UK conflict with Europe is 'absurd'
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A date has been set for a hearing in the High Court to determine the legality of a patent office review of the level of protection it offers to software patents in the UK. On November 19, the High Court will hear four small UK companies argue that the patent office's refusal to accept patent claims covering disks and downloads is "absurd" and puts the UK in conflict with European patent law.
This is a (very) fine point in patent law, so we'll refresh your memories with the technical details.
A patent contains (at least) two parts: the description, and the claims. The description must contain enough detail for another person to replicate whatever is being patented. The claims, meanwhile, determine the scope of the monopoly: i.e., what it is you can stop people from doing.
A patent office spokesman offered the following example in May this year: You have applied to patent a washing machine, which is controlled by software. You are effectively asking to patent two things - the washing machine, and the software that controls it.
Under the new guidelines, the patent office says that while you have a monopoly on the washing machine, you do not have a monopoly on the distribution of the code.
That means other people can distribute or sell copies of the software, provided they are not knowingly aiding another person in the infringement of your main patent. (This would count as secondary infringement, is considered distinctly anti-social, and is likely to attract the attention of your local constabulary.)
"A lot of people think there is no problem here because disks and downloads are protected by copyright," noted Nicholas Fox of Beresford & Co, the lawyer working for the four firms. "That is just not true. Copyright protection only protects code against copying. In contrast, patent protection enables a company to monopolise an invention even if competitors independently come up with the same idea."
The companies argue that the rules are now inconsistent, and are forcing firms to apply for European patents, rather than UK patents. This is an impediment to British industry, the firms say, and puts firms at a disadvantage.
The four firms are Astron Clinica Limited, Software 2000 Limited, Surf Kitchen Inc and Cyan Holdings Plc. In May this year another company, InRotis Technologies, formed part of the complaint. It is not clear why the firm has opted not to continue the action. ®
COMMENTS
Copyright
The idea of patents is to provide a monopoly to the inventor as a reward for sharing their methods with the public. After a reasonable length of time, but while the invention still has value, the invention becomes part of the public domain. It's also only meant to protect *innovative* things that would not occur to a skilled practitioner of the art.
I could argue that 19 year old software has very little value, and should therefore not be protected by patent. It's also questionable as to whether ANY software is truly innovative, or simply an evolution of all the software that has gone before.
The same argument could be argued about copyright protection for software. Is 70 year old software really going to have ANY residual value for the public domain? If not, why are we, as a society, wasting resources protecting someones copyright for no benefit to society?
Divide current terms by 10 for software and it might work. 2 year patent terms or 7 year copyright protection for software makes some sort of sense. But the longer terms just don't cut it. But of course I live in a fools paradise. Money talks, and those with money will keep changing the rules to increase their money while keeping others out. It's the way of the world, and patents/copyrights have become just another tool by the ruling oligarchy to keep a firm control on things.
@Keith T
> So if you implement your "set of instructions" on a programmable electronic device, it can't be patented. [...] That makes no sense, except to software freeloaders -- people who expect programmers to work for free.
Suppose I patent a method for buying goods or services with one click (it interfaces with a database to retrieve previously entered payment information). Now I want to charge every one who writes software that has the same effect $10 per end-user transaction. Now who's the freeloader?
And don't say you can't patent that because, in the US, Amazon did. And it held up in court. Twice. What's more, they didn't use it to get royalties but to stop a rival from writing anything of the sort.
If you think software patents are a good thing you clearly haven't seen the results thus far.
@ Dunstan Vavasour
"This is why any change in the status of software patents in EU member states would have an immediate and catastrophic effect: all of a sudden, products which were legitimately being bought and sold would become illegal - the fact that they were infringing SW patents would change from being inconsequential to being illegal."
No, because -ex post facto- enforcement is prohibited under EU law (IMMSMC, that was what saved Pinochet: what he had done was not illegal under UK law at the time when he did it, therefore he could not be extradited on grounds of no dual criminality). A falsely-granted patent would *not* become enforcible simply because the law which made it bogus changed. It would remain false, and patent holders would have to re-apply for their patents -- which most probably would not be granted, due to the existence of substantial bodies of prior art.
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