January 13, 2006 1:57 PM PST
U.K. judge frowns on software patents
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Sir Robin Jacob, a judge at the U.K.'s Court of Appeal who specializes in intellectual-property law, spoke about the potential problems surrounding software patents at a seminar for the Society for Computers and Law on Thursday evening in London.
"Do we need patents for computer programs? Where is the evidence for it?" Jacob asked.
The need for software patents has been questioned by campaigners such as the Foundation for a Free Information Infrastructure, but few studies have investigated this issue. The European Commission has funded a study on the legal, technical and economic effects of software patents on innovation, but the study is not due to be finished until 2007.
Last year, the European Parliament rejected the directive on the patentability of computer-implemented inventions, which became widely known as the software patent directive. Many claimed that this directive could lead to the widespread patenting of software, as is the case in the U.S.
"The United States takes the view that anything made by man, under the sun, can be patented. And they have granted patents for business methods, mainly computer business methods. But as far as I can see, it would cover a new and improved method of stacking oranges on a barrel," Jacob said.
Jacob said that IP rights are often justified on the "pragmatic grounds" that they encourage research and development, but that people have "got to look at all IP rights critically and say, 'Do we need them?'"
One aspect of the patentability of computer programs that Jacob said gives him "considerable concern" is the searching for prior art.
"It's been said that (searching for prior art) is all going to be sorted out and will be very easy in due course--I don't believe it," he said. "And some of the fuzzy patents that have emerged from the United States tell you that it's going to be very difficult to stop very ordinary things from being patented."
This is a question of policy, rather than a legal question, according to Jacob. However, he admitted that he was glad he hasn't had to consider any software patent cases in the appeal courts yet.
Criticism of the U.S. patent system has been mounting recently. Last week, IBM said it will participate in a number of initiatives to improve patent quality, and a number of other patent holders in the U.S., including Microsoft, have also called for patent reform.
Jacob claims to have also noticed a change in the attitude toward patents and intellectual property in general.
"IP rights themselves may have reached a bit of a swing of opinion. One is detecting public disquiet in a number of areas of intellectual property, asking: Are we going too far? There's a serious worry about patent offices and how you stop them from granting pretty ropey patents," he said.
Ingrid Marson of ZDNet UK reported from London.
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like it, and, most importantly, the attorneys won't like it.
"For many years, anyone seeking to patent the use of a computer for functions that were previously performed manually had double trouble if the invention related to a way of doing business. First, the Patent and Trademark Office decided that mathematical algorithms were not a statutory category of subject matter that could be protected by patent. Second, business methods were held to be unpatentable. These two objections have been eroded over the years.
Recently, software inventions involving algorithms have been eligible for United States patents as long as tangible results are produced. Also, in the mid-1980s, Merrill Lynch won a court ruling that it was entitled to have a patent on its Cash Management System, which involved various types of processing of financial data by computer."; see link:
<a class="jive-link-external" href="http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html" target="_newWindow">http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html</a>
with lines of text instructions for the computer to follow. Some
are written in graphic languages.
Not all computers internal operation are the same. One of the
first bit slicer computers I used has Pascal as its machine
lanquage.
Years ago we started micro coding internal computer operation.
That effect is complex operation happen as the result of minimal
instructions.
All of these computer variations can produce identical output
while executing wildly different instructions to achieve that end.
2. Most software companies would complain that that would limit lawsuits to a very narrow category: specifically programmers who stole the code, went to another company, and produced a similar version.
It's enough of a monopoly in the market now as it is, without adding the burden of patents to everything. Microsoft has patents for saving files, hardly anything they invented.
Surely the courts have cases that are more important than deciding who was the first to think up the iTunes interface. I mean, how hard can it be to decide where the play button goes? Is that really a matter to be considered by a court, or a software engineer? There are probably hundreds of people awaiting their moment in court: those who are unjustly incarcerated, rapists that belong behind bars but are running free because their judgement is not due for another six months, people on death row who are appealing to save their lives, people who have lost a loved one and are awaiting for the murderer to be judged. And yet, the courts (experts in law) are deciding things that companies (experts in software design) should be deciding. Take the famous SCO vs. IBM case. A court is (or was, I am not really current on that) expected to determine whether propietary code was inserted into Linux. The court was somehow supposed to understand the code and how it works and determine whether or not the code infringed the patents. How many judges know C or C++? Does this one know? I don't think so. And yet, he is the one that has (or had) to make the decision. Again, court time wasted on something trivial. What does it matter if a "for" loop was used instead of a "while" loop or something like that?
It also says that companies are calling for patent reform, even Microsoft. The software giant has had a "change of heart" in many things lately. They say their software is better designed now and more secure (they said that with XP also...). But where is Vista? Office 12? The change has not been in design, it has been political. MS likes to play the masses, it always has. Now, they are "calling for patent reform" because they are noting disquiet, so they are "giving the people what they want" while in reality advancing their own agenda. They are jumping the bandwagon of patent reform only because other companies are doing so, to keep from loosing customers. Monkey see, monkey do.