[DMCA-Activists] Seth on EU Software Patents

[Seth Johnson]

> http://www.nosoftwarepatents.com/phpBB2/viewtopic.php?p=492#492

Posted: Mon Nov 01, 2004 6:15 am

Pure abstraction is not patentable, even if it expresses a
breakthrough discovery. This understanding is stronger in the
European tradition (though these days this understanding seems
unfortunately to be located outside of the EU patent
establishment, despite what the law says).

Europe is presently going through paroxysms as their tradition
confronts privileged interests who are trying every form of
political trickery and deceit to enable the patenting of
algorithms in the European Union. A particularly ludicrous case
in point is the Directive on the Patentability of
Computer-Implemented Inventions, which attempts to enable
software patents when they are part of a "computer-implemented
invention." There's absolutely no difference between patenting
software in a device and patenting software. Software is
abstract. A patent on software in a device is a patent
everywhere. That's the nature of abstraction.

Those behind the Directive on Computer-Implemented Inventions
have decided that the reason why theory, math, etc. are excluded
from patentability is not because they are abstract, but because
they have a personal preference for saying patentable subject
matter is "defined" by a nebulous "technical effect" that they
know they can always include if they can only get the right to
patent software "contained" in devices.

They have fallen under the illusion that patent policy is
foremost about finding ways to grant and protect exclusive
rights, regardless of the nature of what you're trying to patent,
rather than about what would stifle innovation and what wouldn't.
The members of the patent establishment in the EU have succumbed
to the same fallacy we see in America -- to such an outrageous
extent that they have forgotten why patents on abstraction are
ridiculous.

This confusion has led them to fail to draw a distinction between
instructions for computers (software) and concrete methods that
show us how to employ natural forces in new ways.

To get to the truth of the matter, just try asking them to add
language to the Directive that would make clear that the software
in the device is not covered by the patent, just the device as a
whole. They refuse, every time. Instead, when they speak of not
allowing patents on software "as such" or on "pure software,"
they really mean any code that nobody has yet described as having
a technical effect of some absurd sort. Or, to put it another
way, any code that nobody has yet pretended to be "contained in"
a device and therefore supposedly limited.

It's ridiculous (to put it in a ridiculously mild way), but
that's exactly what's going on.

The simplest way to explain how software is different is to look
at what the computer is. A computer doesn't do anything but
logic. It's different from other devices because it's designed to
automate abstraction. When you look at it that way, you can see
clearly that software is nothing but abstract logic, instructions
designed for a logic device. Software is something abstract that
anybody can "implement," the same as math or scientific laws,
without considering for a moment that somebody might have a claim
on it as a supposed concrete discovery.

Those who draw a line between "solutions" and "problems" have a
similar misconception; they want to believe patent policy is
about protecting exclusive rights *to anything that is
innovative,* regardless of the abstract nature of the subject
matter (such as, for example, the RSA patent). They therefore
reach the absurd conclusion that purely abstract, logical
algorithms can be patented if they are innovative "solutions,"
not just "problem statements."

Also probably helpful would be to stipulate that using abstract
code to direct a logic device to control a process is just not
innovative. Software is inappropriate subject matter in the first
place; and the patentability of a claim has to do with the
process independent of program control.


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