Novell, buyer's remorse, and the patent threat [LWN.net]

Novell, buyer's remorse, and the patent threat

Posted Nov 22, 2006 16:13 UTC (Wed) by wookey (subscriber, #5501)
In reply to: Novell, buyer's remorse, and the patent threat by lysse
Parent article: Novell, buyer's remorse, and the patent threat

People say this categorically too often. It is nothing like that clear-cut.

There are plenty of software patents issued in the UK - like the JMRI model railway control patent, a classic from ARM Corp about changing pointers instead of copying data to speed up emulation (nobody ever did that before 2003 right?), microsoft clipboard format, etc. There are also software patents that have been successfully litigated in the UK. The most famous is probably the 'pupil management data trasnmitted over a wireless network' one that the government had to 'buy off' in the end to let people implement wireless networks in UK schools.

The recent Aerotel patent that was considered in the court of appeal was granted. It was granted because the judge thought it was a hardware patent because he was told so - but if you read it, you will see they added nothing but a bit of software to an existing telphone exchange in order to do billing in a particular way. Smells like a software patent to me, not a 'new network' as the judge described it.

The situation in the UK (and Europe generally) is better than the US because business method patents really are being resisted, but software patents are being granted and enforced right now. We are trying to hold the tide back, with some success, but saying 'software patents are unenforceable in Europe' is wrong and complacent. The EPLA plan is gaining momentum and _sounds_ reasonable to the inexpert, so will be hard to resist. It is equivalent to creating the US central Patent Court that made 'everything' patentable there in practice. I see no reason why things shoudln't go exactly the same way here over the next 10 years unless a _lot_ of people complain.

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Novell, buyer's remorse, and the patent threat

Posted Nov 22, 2006 19:25 UTC (Wed) by lysse (guest, #3190) [Link]

> There are plenty of software patents issued in the UK

I am aware of this, and there are even more issued by the EU patents office - which is why I talked in terms of validity, not of issue. Nobody is claiming that invalid patents are never issued; they shouldn't be, sure, but the patent issuers are only human. An invalid patent can't be relied upon in court, though, and that's what matters - the ability to say "try it" to someone waving a software patent in the sure knowledge that it would get kicked out of court.

> There are also software patents that have been successfully litigated in the UK. The most famous is probably the 'pupil management data trasnmitted over a wireless network' one...

...that the account you link to describes as having *failed* in litigation; the DfES substantially won in 2004, and pretty much let Bromcom's new owners settle with them after the patent directive was rejected (destroying any hope of Bromcom actually winning anywhere). Backing up your case with evidence that contradicts it doesn't strengthen it as much as you'd hope, you know...

> The recent Aerotel patent that was considered in the court of appeal was granted. It was granted because the judge thought it was a hardware patent because he was told so...

...and therefore he *explicitly rejected* the idea that patents would be extended to software. That, again, sounds like a reaffirmation of the existing situation to me; presumably if somewhere presented a software-only solution, the same judge would have found that either the patent was invalid after all or a software-only solution couldn't infringe the patent by definition (because it's a hardware patent).

> software patents are being granted and enforced right now

Being granted, maybe. Can you point to *anything* in UK law that's an unequivocal "enforcement" of a patent that both sides acknowledge to be software-only? ...Somehow I doubt it. After all, if you could, such a case would serve as a precedent for the general enforceability of software patents (which the Aerotel case explicitly contradicts), and would surely have been such a landmark case in patent law that the Aerotel judgement would necessarily have referred to it.

I'm not saying that it's OK to be complacent, and I respect your efforts to hold back the tide; and nor would I disagree about the dangers of the EPLA - but I do disagree that the situation is as equivocal as you're painting it, and I do so because on the evidence that *you* present, UK courts are holding fast in their refusal to extend patentability to software. The case against software patents needs to be made to the politicians, not the judges. Moreover, perhaps I'm not the person on whose back you should be jumping up and down - the soldier who shoots his allies first soon ends up fighting alone.