A LITTLE INCIDENT which was mentioned at the end of March has ended more peacefully. Anivar explains why.:
On 27th March 2009, On 27th March 2009, a section of the press carried a news which said Mr. Anvar Sadath, Executive Director, IT@School has received an international award from ODF alliance for his contribution to the ODF. It was surprising for many of us who wondered what his contribution to ODF was. Two days later, some of us received a press release issued by ODF alliance which made it clear that recognition was given to Mr. Anvar for the ODF adoption in schools of Kerala. The press release also had quotes from Mr. Anvar Sadath and Mr. Marino Marcich of ODF alliance.
However, recent reports in the local media and online forums tried to put this incident in bad light. We want to clarify that the recent reports on the issue in a section of the press attempting to link our opposition to the award as having political connotations is completely misplaced. Our intention, as activists of the Free software movement, is to correct a mistake on the side of the ODF Alliance . We are happy that the Alliance has been open to our criticism and have admitted the flaws in their selection process.
From the discussions attached with this press release, it can be seen that the entire discussion was to correct a mistake. We request not to inappropriately link this incident to other political issues.
We wish to apologise to Mr. Anvar Sadath if unnecessarily negative publicity cropped up; the good news which everyone ought to share is that, regardless of credit, Kerala is the biggest winner and it’s all that matters. ODF facilitates choice, long-term retention, and freedom. █
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FURTHER TO this previous post, I have just submitted my answers to the Enlarged Board of Appeal
[PDF] regarding software patents. Here it is as text and as LATEX.
Enlarged Board of Appeal
European Patent Office
80331 Munich, Germany
To whom it may concern in the Enlarged Board of Appeal,
I hereby submit my answers to the questions about case G3/08. As a computer scientist in Europe, the subject matters to me personally; in particular, the effect of this matter reaches Free/Open Source software. It is increasingly used and developed in Europe, whose legislation in the area affects progress.
The questions are phrased in such a way that they almost entrap the answerer, so replies address entire blocks of questions. I shall address the questions raised by the EPO, in turn.
QUESTION 1: CAN A COMPUTER PROGRAM ONLY BE EXCLUDED AS A COMPUTER PROGRAM AS SUCH IF IT IS EXPLICITLY CLAIMED AS A COMPUTER PROGRAM?
I fear that permitting such loopholes to exist leads to the actual permission of software patents. To quote Marshall Phelps from Microsoft, “[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.” By allowing ambiguity, the EPO essentially leaves the door open to software patents, in which case the policy becomes moot.
QUESTION 2: (A) CAN A CLAIM IN THE AREA OF COMPUTER PROGRAMS AVOID EXCLUSION UNDER ART. 52(2)(C) AND (3) MERELY BY EXPLICITLY MENTIONING THE USE OF A COMPUTER OR A COMPUTER-READABLE DATA STORAGE MEDIUM? (B) IF QUESTION 2 (A) IS ANSWERED IN THE NEGATIVE, IS A FURTHER TECHNICAL EFFECT NECESSARY TO AVOID EXCLUSION, SAID EFFECT GOING BEYOND THOSE EFFECTS INHERENT IN THE USE OF A COMPUTER OR DATA STORAGE MEDIUM TO RESPECTIVELY EXECUTE OR STORE A COMPUTER PROGRAM?
This suggests that a separation between hardware and software is possible despite the fact that one requires another in order to operate. There is no program which is separable from hardware because without execution it exists only in the minds of people, much like poetry. Any software patent is able to characterise itself with the combination of hardware that it interacts with, so it is irrelevant whether or not hardware is mentioned in a patent application. If the inventor was to construct a novel physical entity, its physical attributes — not mere zeroes and ones that pass through it — may merit a patent.
QUESTION 3: (A) MUST A CLAIMED FEATURE CAUSE A TECHNICAL EFFECT ON A PHYSICAL ENTITY IN THE REAL WORLD IN ORDER TO CONTRIBUTE TO THE TECHNICAL CHARACTER OF THE CLAIM? (B) IF QUESTION 3 (A) IS ANSWERED IN THE POSITIVE, IS IT SUFFICIENT THAT THE PHYSICAL ENTITY BE AN UNSPECIFIED COMPUTER? (C) IF QUESTION 3 (A) IS ANSWERED IN THE NEGATIVE, CAN FEATURES CONTRIBUTE TO THE TECHNICAL CHARACTER OF THE CLAIM IF THE ONLY EFFECTS TO WHICH THEY CONTRIBUTE ARE INDEPENDENT OF ANY PARTICULAR HARDWARE THAT MAY BE USED?
Hardware responds to signals that it is capable of interpreting and reacts in a predefined physical fashion. For example, a hard drive uses a physical process to produce output upon receiving a known signal. As such, any process described in algorithms may effect a physical device in one form or another, but its role in the process is as abstract as one’s thoughts. To suggest that software changes the form of something physical is to suggest that one’s mere thoughts can lead to muscular motion and thus be considered an invention. Once the ownership of one’s ideas — as expressed in broad terms — becomes possible, copyrights can be rendered moot and instead block any expression of ideas — be it an algorithm, a musical note, or the assembly of pertinent facts/parts — which is what every invention really is about. There needs to be a physical device which is new and unique. Without innovation in physical terms, patentability becomes not only absurd but dangerous too. In Re Bilski is an example of broadening the scope of patents too far.
QUESTION 4: (A) DOES THE ACTIVITY OF PROGRAMMING A COMPUTER NECESSARILY INVOLVE TECHNICAL CONSIDERATIONS? (B) IF QUESTION 4 (A) IS ANSWERED IN THE POSITIVE, DO ALL FEATURES RESULTING FROM PROGRAMMING THUS CONTRIBUTE TO THE TECHNICAL CHARACTER OF A CLAIM? (C) IF QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE, CAN FEATURES RESULTING FROM PROGRAMMING CONTRIBUTE TO THE TECHNICAL CHARACTER OF A CLAIM ONLY WHEN THEY CONTRIBUTE TO A FURTHER TECHNICAL EFFECT WHEN THE PROGRAM IS EXECUTED?
If specialised knowledge is required to write a particular program, i.e. series of commands, then it is likely to involve computer-independent knowledge such as mathematics or physics. To acquire a monopoly on areas of science where nature’s rules cannot be refuted should require the inventor to seek a patent in his/her particular field, not the field of software engineering. The question begs to insinuate that scientists deserve protection for their hard work, but rarely does this work have anything to do with computers; software is just where these ideas happen to be applied, although they could equally well be applied using pen and paper.
On a separate note, in order for Europe to preserve and promote autonomy, the rejection of software patents is encouraged. This gives tremendous advantage to those are are ably programming without the burden of lawsuits, filing of papers, and studying of too many papers. It gives European programmers the upper hand. The field of software is highly complex and there are many intersections in implementations of different ideas. It is not practically possible to ensure that one program does not `collide’ with another at a binary level and since composers of software are able to program without anything but a computer (and distribution likewise, thanks to the Internet), to impose unnecessary limits is virtually to forbid many the art of programming, turning it into a scarcely-explored field possessed and controlled by a small number of privileged classes with portfolios that represent monopolies on mathematics. This imperils both the economy and the value of innovation; history teaches that most brilliant software technologies are conceived by a small group of enthusiasts, and not with a patent application.
If you reside in Europe, please send your answers as well before the deadline is due. The address to mail answers to is
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The question of software patents without democracy and the FFII response
IN October 2008, the President of the European Patent Office (EPO) issued a Referral to its Enlarged Board of Appeal (EBoA) concerning the questions as to the examination and granting of software patents in Europe. In the absence of European legislative initiatives, the EBoA’s conclusion on this matter is likely to have the same effect as a software patent directive.
“In the absence of European legislative initiatives, the EBoA’s conclusion on this matter is likely to have the same effect as a software patent directive.”However, since this decision will be based on a purely legal interpretation of the European Patent Convention (EPC) by the EBoA, it will not be accompanied by more extensive political and economic debate.
As stated by the EPO, third parties may wish to use the opportunity to file written statements before the end of April.
The FFII would like to ask you to consider writing a statement in the name of your company, organisation or as private person, and if possible also to support the action plan of the FFII (see below).
You can see statements already submitted by others.
The FFII offers a dedicated mailing list for discussions on the referral and a petition page against software patents.
With an action plan, the FFII are funding two experts to work full-time on the issue and also produce detailed documentation about software patents in Europe, to be published in the near future. They need your contribution in order to do this. Please consider making a donation, marking it as ‘EBoA Referral’.
International bank data:
Name: FFII e.V.
Address: Blutenburgstr 17, DE 80636 Muenchen
Germany bank data:
Name: FFII e.V.
Sort code (BLZ): 70150000
For using Paypal, see
At present there is no central jurisdiction for European or community patents. National court decisions are still not fully aligned with the European Patent Office’s (EPO) granting policy concerning software patents that has been developed by decisions of the EPO Boards of Appeal. The disparity between national patent enforcement courts and the EPO’s granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed. This directive, as well as the 2000 attempt to change the European Patent Convention, was rejected not least because of the larger FFII network’s activities.
“The disparity between national patent enforcement courts and the EPO’s granting practice was one of the reasons why a directive on the patentability of computer-implemented inventions was proposed.”Despite the fact that several attempts to formally legalise software patents in Europe proved unsuccessful, the EPO still has not adapted to the developments in the political arena. The EPO still grants software patents under the application of loopholes created by its Boards of Appeal decisions.
The EPO’s granting practice gradually gains more acceptance in national courts thanks to a trickle down effect, while the legal certainty of national software patents remains to be determined. Validity rulings and opposition mostly reject questionable software patents out of novelty and inventive step considerations, but not on grounds of the substantive scope of patent law.
On October 22, 2008 the Enlarged Board of Appeal was asked by the President of the European Patent Office, Alison Brimelow (UK), for an opinion concerning the exclusion of computer programs as such according to Article 112(1)b EPC. She highlights that this matter is of fundamental importance as it defines the limits of patentability in the field of computing. The Referral is divided into four chapters. The first chapter describes the background to the Referral, the second chapter concerns definitions of auxiliary terms such as software, while part three includes four questions about substantive law interpretation. Part four describes the legal framework and options for its development. The President also added background information and an overview of BoA decisions related to this specific matter.
The FFII has a wiki page where comments on the questions can be added.
The EPO Enlarged Board of Appeal decided to allow third parties to make statements concerning the points of law (November 11, 2008). The FFII will provide legal considerations which challenge the controversial Boards of Appeal decisions and thus influence the decision-making process. In the absence of legislative clarifications, some courts in the UK recently accepted EPO ‘case law’. The opinion of the Extended Boards of Appeal will create the precedent for all future legislative developments. As there is no legislative scenario in sight which might overrule the EBoA in case it permits software patents, this particular Referral needs the FFII’s attention. Other parties interested in software patents are going to submit comments in favour of software patents. Philips, in fact, has already done so.
FFII’s action plan
The FFII will submit entries to the Enlarged Board of Appeal in order to bring about a more balanced assessment, and to help the EBoA arrive at legal solutions that are closer to their expectations. The communication targets are patent technocrats with a different belief system to which others need to adapt. So far, FFII members have concluded that several different strategies can be applied. They have discussed these extensively with patent experts. For strategic reasons they cannot make them public, suffice it to say that they are currently in the process of finding collaborators in the FFII’s attempt to stop software patents.
- Recent EPO legal patent literature has done little to challenge or even criticise the teachings of the EPO. Patent scholars from other professions such as political science, economics, etc. are hardly discussed in the legal literature. Patent professionals’ task is not normative legislature, but winning cases and applications. While there has been sustained disagreement with software patents in the field of business, legal literature still hardly reflects this shift.
- Inside the EPO there is no open debate and employees are bound by strict staff obligations (cmp. Communique 22). The EPO aggressively intervenes in political and scientific debates, while the patent community’s belief system is still largely determined by an unchallenged endorsement of software patents.
- The EBoA’s members are not necessarily eligible for judicial office, and some of them are merely technically qualified. The EBoA’s lack of independence is a known issue and an EPO reform is underway to make these bodies more independent. Some patent scholars altogether question the legal quality of EBoA reasoning.
- The political debate over patent law is largely blocked. The fact that no corresponding parliament report was issued in response to an official communication from the Commission about the future of Industrial Property policy testifies to this.
- Members of the EBoA will probably only accept legal considerations and solutions.
- The EPO’s dogmatic language is shielded against public criticism and, even for legally trained people, like a net in which one easily gets caught. Its reasoning is often based on logical fallacies and hidden value judgments.
- Patent law interpretation practice is expansive. In an allegedly unclear situation, the patent community will always argue against exclusion from patentability. It lacks a negative definition of “invention” and a sound basis in legal teaching which could be used to explain why a field is not to be covered by patent law. Patent professionals generally do not understand the economic rationale behind incentive system application, while economists often assume for their model that the patent system has the claimed effects.
- The EPO and its staff have a strong commercial bias in favour of granting patents and are hardly ever subjected to public scrutiny and control. Patent opposition is less than ideal due to free riding effects and associated risks and transparency gaps (cmp. Guellec07)
- Complicated institutional conflicts between German and UK patent traditions loom in the background of the Referral. De facto European patent policy and litigation is strongly dominated by UK and Germany stakeholders and traditions.
The following conferences – among others which are not public – will be or have already been attended by some FFII members.
Current Policy Issues in the Governance of the European Patent System
Venue: European Parliament, Rue Wiertz 60, Room Anna Lindt, P1A002,
Brussels B-1047, BELGIUM
17 March 2009
Alison Brimelow : Closing remarks
WIPO – STANDING COMMITTEE ON THE LAW OF PATENTS
Geneva, March 23 to 27, 2009
The future of intellectual property
Creativity and innovation in the digital era
April 23rd -24th, 2009, Committee of the Regions, Brussels
Making IPR work for SMEs
27th of April 2009, Brussels
April 28th-30th, Prague
Alison Brimelow opening it.
Workshop on patents and software
Measuring the value of IPR: theory, business practice and public policy
September 24-25, 2009, Bologna
Sponsored by the EPO. Alison Brimelow has been invited.
How to support the FFII
The FFII is divided in working groups and it welcomes new active people in these working groups which are listed at
If you consider the FFII’s work important but you are not able to help actively, you can become a passive sustaining member of the FFII, starting at 15 EUR per year.
How to contact the FFII
Tel. +49 30 417 22 597
Fax: +49 30 417 22 597
IRC: #ffii @ irc.freenode.net
Tax number: 143 / 843 / 17600 at the German tax office in Munich.
IBAN: DE78701500000031112097, SWIFT/BIC: SSKMDEMM
Registered organisation in Munich, Amtsgericht Munchen VR 16460
Board: Benjamin Henrion, Rene Mages, Ivan Villanueva, Andre Rebentisch, Alex Macfie █
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FOR the benefit of Free software supporters and activists, we are keeping a close eye on software patent issues. Here is the latest summary, which would not have been possible without Digital Majority.
Microsoft Loves Patent Deform
The USPTO is in a very bad shape. Just how bad? Well, over at USENET, Richard Rasker showed this patent on a stick. Here is the abstract:
An apparatus for use as a toy by an animal, for example a dog, to either fetch carry or chew includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance. The toy is formed of any of a number of materials including rubber, plastic, or wood including wood composites and is solid. It is either rigid or flexible. A flavoring (scent) is added, if desired. The toy is adapted to float by including a material therein that is lighter than water or it is adapted to glow in the dark, as desired, by the addition of a fluorescent material that is either included in the material from which the toy is made or the flourescent material is applied thereto as a coating. The toy may be segmented (i.e., notched) so as to break off into smaller segments, as is useful for smaller animals or, alternatively, to extend the life of the toy. Various textured surfaces including camouflage colorings are anticipated as are straight or curved main sections. The toy may be formed of any desired material, as described, so as to be edible by the animal.
With silly patents like this one, no wonder companies are constantly being injured, despite making no attempts to imitate. The only ones to gain here are lawyers.
The largest IT company in the world, Hewlett-Packard, has been humbled by Australia’s national science agency CSIRO and agreed to settle for an undisclosed sum over a long running Wi-Fi patent infringement suit. The win against the Silicon Valley colossus has given CSIRO ammunition to continue pursuing 13 other technology giants for millions of dollars in licensing fees.
Forth comes a so-called ‘change’. Welcome the patent deform[sic], which is a farce. IP Watch Dog, who has always been hostile towards Free software*, still keeps track of it.
Although the agreements were discussed, the specific language has not been announced as yet, but will be forthcoming. Senator Leahy explained that the Senators and their staff are still working over the exact language that will be put in place prior to the next meeting, which will take place on Thursday, April 2, 2009. The language is apparently going to be circulated prior to the next Executive Meeting on Thursday, April 2, 2009, so that the stakeholders can have an opportunity to be heard regarding the changes.
Guess who else likes this deform? Microsoft goes on the record applauding it publicly.
Even though it suggested that there was additional room for improvement, Microsoft applauded action taken by the Senate Judiciary Committee on the Patent Reform Act of 2009. The US Senate Judiciary members managed to reach an agreement at the start of April 2009 on U.S. patent legislation, and the markup will now move to the next stage in the Senate.
More information about this bill, which a Senate panel approved, can be found in CNET.
A Senate panel on Thursday approved a patent reform bill that brings opposing parties from the technology, pharmaceutical, and other industries closer to a compromise on the contentious issue.
This bill does nothing to eliminate software patents. As such, OIN intends to use its patent portfolio to clear FAT.
OIN: TomTom settlement is no win for Microsoft, expect challenge
Open Invention Network CEO Keith Bergelt said the settlement announced yesterday was anticipated and expected and he is “nonplussed” with the result. He said Microsoft’s effort to build a series of tiny “totem” patent cases to create fear, uncertainty and doubt about using Linux is futile.
Information about the TomTom settlement can be found here. Microsoft has resorted to intimidation tactics and as Patently-O puts it, this raises antitrust concerns.
Patents Blocking Antitrust Action: Carrier suggests that the existence of IP rights should not grant a company a free-pass to take otherwise anticompetitive actions. In his post, Prof. Phil Weiser (Colorado) agrees “IPRs should not displace antitrust oversight.” Weiser argues that this is especially true in the area of software patents: “Given that software patents are controversial to begin with, awarding the recipient of a patent on an application programming interface or communications protocol a get-out-jail free card is hard to justify.”
A Linux discussion about software patents took place in
lwn.net and it’s concluded as follows.
There was a brief discussion of the practice of not researching patents at all with the hope of avoiding triple damages for “willful infringement.” The participants agreed that this was a dangerous approach which could backfire on its practitioners; convincing a judge of one’s ignorance can be a challenge. But it was also acknowledged that there is no way to do a full search for patents which might be infringed by a given program in any case.
All told, it was a more interesting afternoon than one might expect. The discussion of software patents in the free software community tends to follow familiar lines; the people at this event see the issue differently. For better or worse, their view likely has a lot of relevance to how things will go. There will be some tweaking of the system to try to avoid the worst abuses – at least as seen by some parts of the industry – but wholesale patent reform is not on the agenda. Software patents will be with us (in the US) for the foreseeable future, and they will continue to loom over the rest of the world. We would be well advised to have our defenses in place.
Europe and Software Patents
To Microsoft, it is not enough for just one country to honour its software patents. It still yearns for the day when software patents are universally accepted and it hires lobbying guns for the job. On the face of it, the EPO is selling out and here is the explanation provided by one person a fortnight ago:
Sadly, the questions posed to the EBA are mined with typical EPO philosophy including their definitions of “technical effect”, “further technical effect”, “technical character”, “technical considerations” and other terminology they have used over the years. In that way they justified black being white, or more specifically the applicability of software patents (but, naturally, not “as such”).
Seeing how the specific questions to the EBA are phrased (quite some traps in there), and what is not asked, it seems clear to me that any set of answers with just “yes” or “no” is unable to speak against software patents in any meaningful way. Furthermore, if only one was to accept the premises of the questions, I submit that seemingly innocent arguments could be twisted in a number of ways to justify software patents. Nice job!
This is not the first such criticism and Microsoft’s pressure groups [1, 2, 3, 4, 5, 6, 7, 8] are raving about EPO incompetence in their blogs right now. They are trying to force software patents on Europe through the latest back door which is unification. On April Fool’s Day, IP Watch published a joke about it (some people easily fell for it) and also a British workshop on software patents was announced on April 1st, but it’s no joke.
On the bright side of things, the German juridical system has just canned a controversial software patent which was never supposed to be granted in the first place.
The German Federal Patent Court ruled to rescind Vistaprint’s controversial software patent, subject to paragraphs 99(1) PatG [Patent Act] and 709 ZPO [Code of Civil Procedure]. The verdict is now official and the judgment in question was published by the Court on March 25, 2009.
The spokesperson from unitedprint.com SE, Andrea Fleischer stated: “The software sector can now breathe a sigh
If — and only if — there is truth in the statement from Microsoft’s Marshall Phelps that The EPO “can’t distinguish between hardware and software so the patents get issued anyway,” then this court ruling means that their back doors won’t impress the courts (presuming defendants would take it there). The German court has already rejected Microsoft's FAT patent. █
*Gene Quinn is a proponent of software patents and he seemingly trolls FOSS even at this very moment by suggesting that FOSS ruins the software industry.
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