04.06.09

Gemini version available ♊︎

My Response to the Enlarged Board of Appeal

Posted in Europe, Law, Patents at 1:25 pm by Dr. Roy Schestowitz

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
Erhardtstrasse 27
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.

Yours sincerely,
Roy Schestowitz
Manchester, England

If you reside in Europe, please send your answers as well before the deadline is due. The address to mail answers to is Dg3registry_eba@epo.org.

Logo - stop software patents

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

A Single Comment

  1. Andre said,

    April 7, 2009 at 7:00 am

    Gravatar

    The comment should be on points of law as it is no consultation. For this reason it is important to read the full document.

    http://documents.epo.org/projects/babylon/eponet.nsf/0/B89D95BB305AAA8DC12574EC002C7CF6/$File/G3-08_en.pdf

    The most helpful contributions would be around the legal concepts.

DecorWhat Else is New


  1. Links 26/10/2021: Vulkan 1.1 Conformance for Raspberry Pi 4 and Tor Browser 10.5.10

    Links for the day



  2. [Meme] Sounds Legit

    When not cheating on the wife, the EPO‘s “doyen” cheats in the exams and makes it into the epi Council, in effect working “[t]owards a common understanding [sic] of quality” with “patent attorneys nominated as “assessors” by the EPO, epi and BusinessEurope” (notorious lobbyists for dictators, litigation, and monopolies, neither business nor science)



  3. [Meme] Mayoral Patent Office Chief

    As it turns out, political 'double-dipping' isn't just a thing in North Macedonia, Austria, and EPOnia



  4. Romania's Patent Office (OSIM): Nine Different Chiefs in Just Eight Years

    The Romanian State Office for Inventions and Trademarks (OSIM), being the equivalent of the U.S. Patent and Trademark Office (USPTO) in the sense that it covers both patents and trademarks, is a very flaky institution with no shortage of scandals; for our English-reading audiences we now have a summary of a decade’s worth of blunders and leadership changes



  5. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League - Romania

    Romania’s patent office has been in flux this past decade, occasionally led by people with no relevant experience, but rather political connections (like EPO President António Campinos) and sometimes forged documents and fake degrees



  6. IRC Proceedings: Monday, October 25, 2021

    IRC logs for Monday, October 25, 2021



  7. [Meme] “Social Democracy” at the EPO

    Some comments on the current situation at the European Patent Office from Goran Gerasimovski, the new EPO Administrative Council delegate for North Macedonia and Social Democratic candidate for mayor of Centar (a municipality of Skopje)



  8. [Meme] António Campinos Visits the OSIM

    António Campinos visits OSIM Director-General Ionel Muscalu in February 2014



  9. [Meme] [Teaser] Meet the President

    Later today we shall see what Romania did for Battistelli



  10. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  11. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  12. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  13. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  14. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  15. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  16. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  17. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  18. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  19. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  20. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  21. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO



  22. Links 24/10/2021: GPS Daemon (GPSD) Bug and Lots of Openwashing

    Links for the day



  23. Links 24/10/2021: XWayland 21.1.3 and Ubuntu Linux 22.04 LTS Daily Build

    Links for the day



  24. IRC Proceedings: Saturday, October 23, 2021

    IRC logs for Saturday, October 23, 2021



  25. Links 24/10/2021: Ceph Boss Sage Weil Resigns and Many GPL Enforcement Stories

    Links for the day



  26. GAFAM-Funded NPR Reports That Facebook Let Millions of People Like Trump Flout the So-called Rules. Not Just “a Few”.

    Guest post by Ryan, reprinted with permission



  27. Some Memes About What Croatia Means to the European Patent Office

    Before we proceed to other countries in the region, let’s not forget or let’s immortalise the role played by Croatia in the EPO (memes are memorable)



  28. Gangster Culture in the EPO

    The EPO‘s Administrative Council was gamed by a gangster from Croatia; today we start the segment of the series which deals with the Balkan region



  29. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”

    The EPO‘s circle of corruption in the Balkan region will be the focus of today’s (and upcoming) coverage, showing some of the controversial enablers of Benoît Battistelli and António Campinos, two deeply corrupt French officials who rapidly drive the Office into the ground for personal gain (at Europe’s expense!)



  30. Links 23/10/2021: FreeBSD 12.3 Beta, Wine 6.20, and NuTyX 21.10.0

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts