
German Parliament says: Stop Granting Software Patents - chalst
https://fsfe.org/news/2013/news-20130422-01.en.html
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kragen
As explained in the comments here, it's difficult to tell what is and isn't a
"software patent". Remember that the famous Unix crypt() patent was described
in terms of a circuit, and then also mentioned in passing that software
implementations of the same logic would also be covered. (A dependent claim, I
assume? I haven't read the patent.)

It seems to me that what we need is not immunity from _granting_ patents on
software, but immunity from _enforcing patents against_ software. I propose a
very simple test: if a system with its software erased would not infringe the
patent, then the system should be considered not to infringe the patent. Thus,
arrangements of machine parts, formulations of coatings, and non-programmable
circuits would be subject to patent litigation; but entire machines that
wouldn't function at all without software would not be.

~~~
saraid216
> It seems to me that what we need is not immunity from granting patents on
> software, but immunity from enforcing patents against software.

If we're not going to enforce a patent against software, why grant it in the
first place?

~~~
kragen
I'm not proposing abolishing the patent system altogether; I'm proposing to
protect software from it, while allowing the enforcement of patents against
things that are legitimately subject to patents.

~~~
saraid216
So why grant patents on software?

~~~
kragen
Because you can't tell if a patent might cover software or not when you grant
it, in the way that the patent law is currently applied under the influence of
WIPO.

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kleiba
_Software patents are illegal under the European Patent Convention.
Nevertheless, the European Patent Office has granted tens of thousands of
patents covering software._

Then what's the point of the European Patent Convention?

~~~
grabeh
[http://archive.epo.org/epo/pubs/oj007/11_07/11_5947.pdf](http://archive.epo.org/epo/pubs/oj007/11_07/11_5947.pdf)

The above link gives details over the approach taken by the EPO, giving
examples of pure software patents which were rejected whilst also illustrating
the approach taken to granted patents in the area.

My understanding is that software in its own right cannot be patented but
where software is incorporated into a specific product to provide
functionality it can be patented.

/edit The following link also provides good information. Essentially, the
barrier is very low to establishing that a software patent achieves a
technical measure and falls outside the exception. For example in HTC v Apple,
a lower court judge found a multi-touch related patent invalid as a computer
programme, however a higher court overturned this ruling.

[http://ipkitten.blogspot.co.uk/2013/05/from-alice-to-
apple-p...](http://ipkitten.blogspot.co.uk/2013/05/from-alice-to-apple-
patentable-subject.html)

~~~
lloeki
> _where software is incorporated into a specific product to provide
> functionality it can be patented._

Actually it is more like when a process like the one that can usually be
patented contains software, then the software part can be included in the
patent covering the whole process.

The key part of Art. 52 §3 creating exemptions from §2 is _" as such"_ [0].

Say you invent a robot able to weld faster and more precisely. You can request
a patent covering the robot and, being a fundamental part of it, the control
logic implemented in software. Yet you can not try and patent the control
logic by itself, nor sue anyone using the exact same control logic anywhere
else, including in robots (as long as they themselves don't infringe on the
patent). Conversely, someone using the same robot design but a different
software algorithm may not be infringing the original patent. This protects
both the innovator from being flat out ripped of and everyone's right to use
algorithms and mathematics freely, while incremental innovations are allowed
either in software or in hardware.

[0] [http://www.epo.org/law-practice/legal-
texts/html/epc/2010/e/...](http://www.epo.org/law-practice/legal-
texts/html/epc/2010/e/ar52.html)

~~~
rbehrends
The problem is that the meaning of "software as such" has been almost
completely eroded over the past decades by the EPO and some national courts
(including, in particular, the X. Civil Senate of the German Federal Court of
Justice).

"Software as such" used to be excluded because inventions were required to be
technical, which meant that a patent had to teach a methodical use of
controllable forces of nature that attained a goal based on cause and effect.
The criterion of "being technical" predated "software as such", but the latter
term was indeed intended to distinguish between pure software and combined
software/hardware solutions, where the software was integral to the overall
solution, reflecting previous exclusions of business methods, mathematics,
etc. under the same criterion.

What happened was that the "use of controllable forces of nature" got watered
down incrementally until now practically anything that isn't defined in terms
of a Turing Machine satisfies the criterion (sadly, I'm not really
exaggerating much here). For example, anything that is designed to operate in
finite (not even practically limited, just not infinite) memory can be argued
to be related to managing resources and thus be technical. Any algorithm that
is more efficient than another (uses less memory, is more cache-friendly,
requires less I/O, etc.) is potentially technical.

As a result, tying your algorithm to a device as an integral part of a
combined hardware/software system is not really a necessity any longer. That
does not mean that anything goes, but there are way too many patents relating
to what developers (but not the EPO) think of as pure software solutions that
are patented and which can trip you up.

This is precisely what the German parliament is referring to when it complains
that "in practice -- in particular by the European Patent Office (EPO) --
patents were granted for computer programs where the patent grant for
teachings relating to pure data processing received only a formal disguise as
a 'technical process' or 'technical device' and claims explicitly included
also the computer programs implementing these processes or devices".

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_stephan
See the correction in the text:

[Correction 2013-04-24: Parliament did not yet adopt the motion, but rather
decided to pass it to the parliament committees for further consideration.]

~~~
chalst
The subcommittee met last Friday and unanimously recommended the motion be
accepted. See [http://www.gewerblicher-
rechtsschutz.jurion.de/news/?user_ak...](http://www.gewerblicher-
rechtsschutz.jurion.de/news/?user_aktuelles_pi1%5Baid%5D=271414&cHash=c51e94e8ce556591e978e83cfe4d365b)
(in German). Since Die Linke have said they will abstain, the motion should
pass overwhelmingly.

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narag
I have an idea to curb patent damage. Leave patent registrars as just that: a
proof that the holder registered the idea. Actually that's exactly what the
USPTO is now really.

If they want to use the patent in a suit for the first time, then trigger a
much more rigorous process to test its validity.

~~~
matthiasl
I like that idea too. The FFII (not known for their love of the patent system
as used for software in some places) has proposed a more complex approach
based on that idea, where there's a bounty system in place to act as a sort of
garbage-collection mechanism to remove duplicate ideas:

[http://eupat.ffii.org/07/p2parl/exam/](http://eupat.ffii.org/07/p2parl/exam/)

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BostX
Let's sing along: There's a long way to Tipperary, there's a long way to gooo.
Sincerely Hans der Lobbyist

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mtgx
This seems a month old. Has it become a law yet?

~~~
rbehrends
It is a resolution, not legislation. In practice, almost any legislation with
significant effect would have to occur at the European level.

It is still a big story, because it is a motion supported by all parties in
the German parliament except the "Linke" (who don't like software patents,
either). That would at the very least indicate that German interests seem to
be pretty strongly aligned against software patents.

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PaulHoule
The Google Economy has hurt the web in a number of ways.

There are some very large web sites I could deliver as a single page app
(looks cool, loads faster, etc.) but that's like having a "cloak of
invisibility" so far as Google is concerned.

~~~
marssaxman
Single-page apps hurt the web; they break navigation. It's a good thing that
Google penalizes them.

~~~
dredmorbius
plus.google.com

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gauravkumar552
If software patents are illegal then how the hell they can grant ten thousands
software patents? I hope they modify the copyright approach a little better
and remove software patents to help save open source softwares.

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malkia
Wasn't fraunhoffer a german institution - the one behind mp3 codec?

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Eifrig
Not compatible with FOSS licensing? Sure that may be true for AGPL but BSD is
the framework that grants patent rights under FOSS and is precisely the thing
to mitigate copyright shortfalls. This is just the EU not being helpful.
Again...

