LWN: Comments on "Arlene McCarthy's software patent "factsheet""

contribution to rebutting Arlene McCarthy's software patent "factsheet"

mly — Mon, 08 Sep 2003 17:54:49 +0000

Oh no. As long as it solves a "technical problem", it is
basically patentable. The solution doesn't need to be
technical. BTW, there is no definition of "technical" in
the directive, but maybe that's just a legal technicality? ;)

Arlene McCarthy's software patent "factsheet"

Winston84 — Sat, 06 Sep 2003 11:47:41 +0000

"I find indeed that patent for "computer-implemented invention" is pointless, since there has been no such thing created ever. I really would like to see good examples from McCarthy of such invention (there must be some since she argues that 30000 such inventions have been handed out by European Patent Office). I think a good example should be presented and show such an invention that there would nothing to arguee against it."

I think here is a really interesting example of a pure (imho) "Software Patent" as per definition. It was granted by the EPO in May 2003 and is called:

Method to generate new structures from existing structures in a computerized system

http://swpat.ffii.org/pikta/txt/ep/1310/841/#adsc

Arlene McCarthy's software patent "factsheet"

ballombe — Sat, 06 Sep 2003 09:15:42 +0000

Myth: << On the contrary, good patent law for computer-implemented
inventions will protect software development companies and give them a
return on their investment through license fees, enabling them to grow
their company and provide alternatives to the dominance of global,
multinational companies in the field of computer-implemented
inventions. >>

Truth: For a software company to get money from licensing, you need
another software company to pay the licensing fee. It is a zero-sum game.
In fact, due to the huge cost of patents and legal fee involved this is
a (very) negative-sum game.

In short, shuffling money between software companies does not generate
values. It just make easier for large companies to get all the money.

FFII:s rebuttal

eru — Fri, 05 Sep 2003 06:08:09 +0000

http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy030901/

(found this via a Slashdot comment, thought the link would be relevant here also)

Arlene McCarthy's software patent "factsheet"

jdthood — Thu, 04 Sep 2003 21:24:51 +0000

McCarthy is essentially arguing that she is on the same side as her critics -- she too wants to stop software patents from getting too far out of control.

The difference between McCarthy and the FFII is that McCarthy thinks that her poor proposal is better than the bad status quo, whereas the FFII thinks that her poor proposal is worse than the good status quo. McCarthy and the FFII differ over the proposal because they differ over how good they think the status quo is.

McCarthy argues that patents on computer implemented inventions are already a fact and that her proposal is less bad than the status quo because it introduces some restrictions. She says that the EPO has already granted 30,000 patents on computer-implemented inventions and that even this hasn't killed small companies or free software programmers; so life will surely be better with the new restrictions in place.

The problem with this argument is that her new restrictions don't amount to much because of the contradictions mentioned earlier. (The inventiveness of computer science is in the creation of algorithms. Creation of algorithms isn't patentable. Application of algorithms to particular problems is straightforward. Application is patentable. So, what is straightforward and obvious (but has the appearance of novelty because of the presence of a novel algorithm) is patentable. So, excluding the non-obvious from patentability doesn't exclude anything.) Yet the passing of the proposal with strengthen the hands of patent holders by legitimizing the status of their otherwise dubious patents.

  Many small companies have given their support to this directive, which
  will give them more legal certainty as it offers the possibility of
  protection for their R&D investment, and so assists in spin-off creation
  and technology transfer and generating new funds for new investments.

  Indeed recently, a small ten-person company in an economic black-spot in
  the UK granted a licence to a US multinational for its voice recognition
  software patents. Without European patent protection in this field, the
  small company could have found itself in the perverse situation whereby
  its R&D efforts and investment would simply have been taken by a large
  multinational company, who, with its team of patent lawyers, would have
  filed a patent on this invention. The EU company could have been faced
  subsequently with patent infringement proceedings.

McCarthy is very confused here. The question of whether companies play on level playing fields in the U.S. and Europe is entirely independent of whether the U.S. and Europe have software patent laws. McCarthy's little black-spot company could have obtained a patent in the U.S. and used that to extort money from the unnamed U.S. multinational; the multinational could have used its patents to threaten the little company right back. And in a Europe without software patents, neither could do either.

  Some lobbyists would like us to believe that having no patents is an
  option - it is not. No patents would put EU software developers at a
  severe disadvantage in the global market place, and would hand over the
  monopoly on patents to multinational companies.

This is McCarthy's key mistake. She thinks that software patents are needed in Europe so that (small) European companies can compete with (big) American companies. That is simply not true. European companies can compete with American companies in each part of the world under the laws that apply in that part of the world.

Can McCarthy really not understand this?

Arlene McCarthy's software patent "factsheet"

jdthood — Thu, 04 Sep 2003 19:50:17 +0000

> Such is the mistake of relying on GDP contribution to provide
> value for something

One sometimes hears that the U.S. GDP per capita is up to one
half higher than that of other industrialized countries. This
might lead one to conclude that Americans are better off and that
other industrialized countries should adopt the American social
and economic model. But such a conclusion clashes with the
evidence that the quality of life for most people in those other
industrialized countries is higher. The paradox must be resolved
by looking at what stands behind those numbers.

Arlene McCarthy's software patent "factsheet"

forthy — Thu, 04 Sep 2003 13:01:20 +0000

Actually, you can see from her fact sheet that she things common practice of the EPO
is more or less ok, but that her proporsal is more restrictive (which is in fact the case).
Arlene for sure has a non-technical education, however I don't know what exactly she
studied (her bio is a bit too terse for a politician - if I were to employ here, I suspect
she's a drop-out).

The main point against software patents is that the technical invention and the
non-patentability of algorithms as such are contradictionary: Algorithm selection (for a
particular technical purpose) is the trivial task of a computer scientist. Any ordinary
computer scientist should be able to research and select algorithms for tasks at hand -
which then solve technical problems. The "inventive" part of CS is to create new
algorithms. Application is the non-inventive part.

As an example, you can use the GIF patent. This would still be legitimate, since it has
a technical purpose: reduce network transfer time for images. The algorithm in question
is LZW, an algorithm that can compress almost anything. The mere selection of LZW
and application on images dedicated for network transfer is an "invention". As
McCarthy says in her "factsheet", other uses of LZW still are free. However, application
of a compression algorithm in order to reduce transfer time *is* something that's trivial.
Which compression algorithm gets chosen depens on how good the CS engineer can do
his research.

We brought that one up when a EPO representative told us (at the university) about
the possibility of software patents - something the entire audience violently rejected
(people did only come in to listen because they wanted to have their concerns heard).
We asked him if he thought it was a clever idea to apply a standard compression
method on an image in order to reduce transfer time, and he said, yes, if it's the first
one who does that, it's a clever idea. We told him, no, it's not a clever idea, even if it's
the first one to do, because it's obvious. The only non-obvious part of the GIF patent
actually is the LZW algorithm itself, which is not patented as such.

IMHO the "technical innovation" part does put a restriction on software patents. It
restricts them to those software patents that can't be done without computers. That's
a good thing, but far from being sufficient. Software patents (despite there are so
many) don't cause much harm, because most companies use them defensively only
(like IBM vs. SCO). Sometimes, a company digs out such a defensive patent, and
starts to sue (example again: GIF patent). Mostly when they got that patent form a
merger.

A good legislation for patents (to follow the spirit of the patent system):

Algorithms may not be patented.

Mere applications of algorithms are considdered "obvious".

A patent involving an algorithm must be dominated by non-algorithmic inventions. This is
the case if the innovation does need an algorithm to work. Only the non-algorithmic
parts of the invention actually are protected by patent law. The disclosure of the
algorithm in question is necessary to understand how the invention works.

We won't get anything like that anytime soon.

Contradiction?

huysmans — Thu, 04 Sep 2003 11:53:32 +0000

From the fact sheet:

===
Recital 13c
(13c) Furthermore, an algorithm is inherently non-technical and
therefore cannot constitute a technical invention. Nonetheless, a
method involving the use of an algorithm might be patentable provided
that the method is used to solve a technical problem. However, any
patent granted for such a method would not monopolise the algorithm
itself or its use in contexts not foreseen in the patent.
===

My understanding: you can patent the use of an algorithm for a specific purpose

(side note: that sounds exactly like what we are afraid of, but still depends on the definition of what exactly comprises a 'technical invention')

===
Myth: Programmes and ISPs will be regularly sued for patent
infringement.

Truth: The Parliament's proposal reinforces the right of computer
programmers and software developers to engage in reverse engineering
practices or to achieve interoperability as currently permitted under
exceptions to the Software Copyright Directive.
===

Reverse engineering is finding out the algorithm used for a specific purpose and then implementing that for the same purpose, am I right?

But, according to the previous paragraph you can patent the use of an algorithm for a specific purpose ...

That sounds like a contradiction to me, but I may not be interpreting this correctly.

Jasper

Arlene McCarthy's software patent "factsheet"

cross — Thu, 04 Sep 2003 10:35:45 +0000

Arlene McCarthy writes "Amazon's 'one-click' shopping would not be patentable under the terms of the parliament's proposals."

That's as close to a flat-out lie as politicians dare tread. *That* particular patent was rejected, but it was then replaced with one *even broader* in scope, and clearly about business methods and not technological innovation.

"The European Patent Office (EPO) in Munich has recently granted a patent to Amazon which covers all computerised methods of automatically delivering a gift to a third party. This patent is a descendant of the famous "Amazon One Click Patent" granted in the USA, but with a broader claim scope than the original US version."
http://swpat.ffii.org/news/03/amaz0818/index.en.html

contribution to rebutting Arlene McCarthy's software patent "factsheet"

eru — Thu, 04 Sep 2003 08:00:08 +0000

McCarthy claims the proposal does not create software patents, and
in support quotes this:

# Article 4a
# Exclusions from patentability:
# A computer-implemented invention shall not be regarded as making a
# technical contribution merely because it involves the use of a
# computer, network or other programmable apparatus. Accordingly,
# inventions involving computer programs which implement business,
# mathematical or other methods and do not produce any technical effects
# beyond the normal physical interactions between a program and the
# computer, network or other programmable apparatus in which it is run
# shall not be patentable.

So it says that programs that do not have any physical interactions on
anything except the computer, network and so on are not patentable,
but it seems to me this restriction stops applying the moment the
program produces any useful output to the outside world, such
as photon patterns from the screen, sound or printout. In other words,
only useless programs that do not do produce anything are exempt!

Arlene McCarthy's software patent "factsheet"

eyal — Wed, 03 Sep 2003 21:38:08 +0000

IANAL, and so I don't pretend to understand most of that fact-sheet. Sure I understand the English, but understanding Law is very different from understand the language.

There are countless legal terms, existing laws and regulations, precedents, etc. that are part of the equation. It is therefore impossible to draw any conclusions from anecdotal commentary on such an issue. With the EU it's all the more complicated becuase of the interation between pan-European legislation and local legislation in each member state.

However, there's one "truth" in this fact sheet that doesn't require any legal knowledge. Instead it only requires some common sense, and this is where Ms. McCarthy is either innocently wrong or deliberately lying:

---
Myth: Software patents kill efficient software development.

Truth: ... <snip> On the contrary, good patent law for computer-implemented
inventions will protect software development companies and give them a
return on their investment through license fees, enabling them to grow
their company and provide alternatives to the dominance of global,
multinational companies in the field of computer-implemented
inventions.
---

The global mutlinational companies *already* control vast number of patents that cover almost every algorithm and every aspect of programming. Once the EU enables software patents, those companies will become truly dominant, as their patents will be enforceable not only in the US but also in Europe.

What's more, individuals and small companies just can't afford to register patents, especially if they want international coverage which requires applications in dozens of coutries. Of course defending a patent in courts is even more expensive, which deters even more people from applying for patents. All those problems are not relevant to the already established multinational companies. They have enough resources.

So patents only help those who are already big and strong, and do very little to help start-up companies, and of course non-profit organization (aka open source projects). Sure there are always anecdotal cases of some person or a small company that made a fortune from a patent, but overall the a few big companies register more patents than everyone else put together.

All this translates into one simple conclusions: software patents will only help to destroy small companies, and make it harder to develop new ideas and new businesses. In political speak: unemployment (well, except for the lawyers as many have already noted...)

I think this is the point that open source supporters should attack. First of all, it doesn't require any legal expertise. Second, exactly because of that, everyone can understand it. Third, economy and employment are weak spots of politicians everywhere, so it's best to put the pressure right there.

Eyal.

Arlene McCarthy's software patent "factsheet"

mmarq — Wed, 03 Sep 2003 20:22:11 +0000

But those 30000 patents, are from different nationalitys, and only have the force of a law regulation in the respective national countrys... without a common EU Directive it would make enforcement virtually impossible, because there are many different interpretations.

So dont bother to much about replying to Arlene McCarthy.

If you intend to write or email MEPs to counter, please consider this.

oak — Wed, 03 Sep 2003 20:08:10 +0000

Or even better, make public fun of her. Political satire has long tradition in European newspapers. Here are a couple of ideas for newspaper / T-shirt pictures:

A map of the Europe on which an EU patent advocate is painting a huge target / bullseye. On the sky there's an intercontinental patent litigation nuke dropping to the target.
Title: "McCarthy painting the EU IP rights landscape for the years to come".

A split image with lawyer on the left and thief on the right. Lawyer has a suitcase behind his back and thief a crowbar. Lawyer talks to a politician and thief to a car owner.
Left title: "Advocating EU patents",
Right title: "On whose best interests?"

Arlene McCarthy's software patent "factsheet"

mmarq — Wed, 03 Sep 2003 20:06:10 +0000

I guess Arlene McCarthy knows her job.

"Exclusions from patentability:
A computer-implemented invention shall not be regarded as making a
technical contribution merely because it involves the use of a
computer, network or other programmable apparatus..."

What a strange wording!!... "Exclusions from patentability: "

I guess from above that this Exclusion grants the fact of law that patents can live in software only apparatus, and therefore is a "INCLUSION" of software patents.

Besides Microsoft and other big corporations that have the politicians living in their pockets, "HOW CAN A INDIVIDUAL OPEN-SOURCE DEVELOPER" scientifically measure
- "technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run" - ???

We can only say that Arlene McCarthy is probably a lawyer... and how good they are at "bull".

If you intend to write or email MEPs to counter, please consider this.

dwalters — Wed, 03 Sep 2003 19:35:44 +0000

It's tempting to react to McCarthy's factsheet to MEPs by shooting emails or letters from the hip to the MEPs.

If you intend to write to MEPs, it would be better to spend a little time (not too much time though; the next important session on this is just weeks away) researching the facts, and coming up with a well researched rebuttal. Emotional pleas won't work.

You can get all the relevant information, from the FFII web site. In particular, check out the Patent Horror Galley. Also note the Counter Proposal.

Finally, don't waste your time trying to change McCarthy's mind on this. Write to the other MEPs. Or if you're going to write to McCarthy, make it an open letter, and copy it to a newspaper.

Arlene McCarthy's software patent "factsheet"

allesfresser — Wed, 03 Sep 2003 18:42:32 +0000

I think I remember hearing somewhere that the most productive kind of person in terms of GDP would be a terminally ill cancer patient who sues their medical provider, since all of those medical and legal people get paid through their misfortune. Such is the mistake of relying on GDP contribution to provide value for something, especially something as ethereal as ideas and processes which provide universal value without taking up any physical space at all. :-(

Arlene McCarthy's software patent "factsheet"

Carl — Wed, 03 Sep 2003 18:37:43 +0000

I really would like to see good examples from McCarthy of such invention (there must be some since she argues that 30000 such inventions have been handed out by European Patent Office). I think a good example should be presented and show such an invention that there would nothing to arguee against it.

Already posted to an earlier article, but worth repeating that the ffii already made such a overview.

I thought the "Test Suite" that the ffii/eurolinux people came up with was pretty good: http://swpat.ffii.org/analysis/testsuite/index.en.html and http://www.ffii.org/proj/kunst/swpat/pamflet/europarl03-testbed.en.pdf

It presents some of these patents that the EPO has illegally granted in the past and asks some simple questions be answered:

Is this an algorithm?
Is this a business method?
Is there a "technical contribution"?
Should this innovation be patentable subject matter?
Does your favorite proposal clearly say so?

And very important:

Would any judge reach the same conclusions?
Where are areas of incertainty?

It would be good to get some answers to the above questions before the European Parlement votes on this.

Arlene McCarthy's software patent "factsheet"

libra — Wed, 03 Sep 2003 18:23:10 +0000

I guess that would provide work for the lawyers too? That is very productive and will strongly help the economy by creating value for sure...

Arlene McCarthy's software patent "factsheet"

libra — Wed, 03 Sep 2003 18:20:17 +0000

From the so-called fact-sheet :

"The proposal applies strictly to inventions which must satisfy the conditions of any invention; must be new, involve an inventive step and must make a technical contribution providing a technical solution to a problem."

Thus the fact sheets carefully uses the term "computer-implemented inventions" to describe that.

Despite that definition, that sound fair at first reading, I have doubts on many points :
1) must be new : with the enormous amount of contribution in the field of computers (free software, students projects etc ...) how can anyone prove that he is the first to have invented something. It will always be easier for big companies with a lot of money to patent things, and thus spoil other people who have aleady found the solution from even continuing to use it.
2) involve an inventive step : as it is well known there is little invention in most of what comes in the field of computer programing. The fact is that facing a problem there is often very few solutions that apply, and patenting them will prevent everyone else to use them, even if we are perfectly capable of inventing those solution ourselves without the help of anyone else.
3) technical contribution : I guess it must not be a trivial one isn't it?

I find indeed that patent for "computer-implemented invention" is pointless, since there has been no such thing created ever. I really would like to see good examples from McCarthy of such invention (there must be some since she argues that 30000 such inventions have been handed out by European Patent Office). I think a good example should be presented and show such an invention that there would nothing to arguee against it.

Finally I also want to say that the European Parliament has to take fair decision. If really software patents is fair, then they certainly have to go on. Sometime the parliament can not take good decisions because a "statu quo" is imposed by European Nations, but at least I hope it will not take too much unfair decisions, because it would spoil the trust we need to have in it.

For the point of fairness I want to mention that Free Software often brings to the market really good and bright pieces of software. Those pieces of software could even be considered inventions according to some people standards, but as they would qualify for such inventions under McCarthy theory, they do so without locking anyone out of using them.

To the contrary companies with patent could attempt to lock out Free Software from certain field of use. I find it is quite unfair when considering what free software brings to the market. I hope this unfairness will also be taken into consideration by those who take the decisions, without always having to assume the consequences.

Arlene McCarthy's software patent "factsheet"

pivot — Wed, 03 Sep 2003 18:06:31 +0000

Information on how to contact her can be found here: Arlene McCarthy MEP.

I have tried sending her an email though, and the reply I got back was just a reharsh of earlier arguments. She is a representative for Labour in the UK. Remember that the next time you vote. Apparently, she is arguing that patentability is a way of helping companies create jobs, which is not what the patent system was created for, rather to help foster innovation. So she is generally arguing for an abuse of the patent system.