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Wednesday, 28 February 2007

Tony Blair says "no" to software patents

A little bird has helpfully pointed out to the IPKat that the Government has expressed an opinion on the subject of software patents, a subject that has recently been exercising the IPKat's various minds (for example in posts here, here, here and here).

Right: the little bird runs away in fear of being found out (photo taken in this Kat's garden last weekend)

A petition was started on the government's 10 Downing Street website by Richard Lightman, a professional (mildly dyslexic) computer programmer. The petition states:

"We the undersigned petition the Prime Minister to make software patents clearly unenforcible".
Further details were provided on what this meant:
"Software patents are used by convicted monopolists [Kat comment: could this perhaps be referring to Microsoft?] to threaten customers who consider using rival software. As a result, patents stifle innovation. Patents are supposed to increase the rate of innovation by publicising how inventions work. Reading a software patent gives no useful information for creating or improving software. All patents are writen in a sufficiently cryptic language to prevent them from being of any use. Once decoded, the patents turn out to be for something so obvious that programmers find them laughable. It is not funny because the cost of defending against nuicance lawsuites is huge. The UK patent office grants software patents against the letter and the spirit of the law. They do this by pretending that there is a difference between software and 'computer implemented inventions'. Some companies waste money on 'defensive patents'. These have no value against pure litigation companies and do not counter threats made directly to customers".
The explanation, as will be apparent to any informed reader, includes at least one misunderstanding or category error in each sentence, which is worrying but perhaps understandable since it was clearly written by someone with little or no knowledge of patent law. What is more worrying is that 2,215 people signed it before the petition closed on 20 February. The petition prompted the Prime Minister's Office to respond as follows:
"The Government remains committed to its policy that no patents should exist for inventions which make advances lying solely in the field of software. Although certain jurisdictions, such as the US, allow more liberal patenting of software-based inventions, these patents cannot be enforced in the UK.

The test used to discern between patentable and non-patentable subject matter in the UK has recently been clarified by the courts, and is applied rigorously by the Patent Office. Under this test, the true nature of the advance being claimed in a patent application must be determined, and if this advance lies solely in the field of software, or another non-technical field such as methods of doing business, the patent will not be granted. If the advance being made by an invention does lie in a technical field, it must also be non-obvious and sufficiently clearly described for the invention to be reproduced before a patent will be granted by the Patent Office.

The recently published Gowers Review of Intellectual Property, an independent review commissioned by the Government, recommended that patent rights should not be extended to cover pure software, business methods and genes. The Government will implement those recommendations for which it is responsible, and will therefore continue to exclude patents from areas where they may hinder innovation: including patents which are too broad, speculative, or obvious, or where the advance they make lies in an excluded area such as software".
The bold statement above is something of a surprise to this Kat, who thought that what counted was the technical contribution an invention made, not how it was implemented. One fair interpretation could be, giving the government the benefit of the doubt, that it simply restates the requirements of section 1(2) of the Patents Act. However, the statement does fit with the UK Patent Office's interpretation of recent case law, as extensively detailed elsewhere (see the linked IPKat pieces above, in particular this one).

This Kat wonders idly whether the Prime Minister's Office had anything to do with recent events surrounding the new, more rigid, approach to patentability of software-implemented inventions. The Gowers report, although cited in the response to the petition, didn't really have anything constructive to say about software patents. Was any pressure put on the Patent Office to clamp down on such inventions? The IPKat would like to know.

More petitions to sign here, here and here, but the IPKat begs you not to sign this one.

6 comments:

Gerontius said...

I'm confused. The Kat comments that he "thought that what counted was the technical contribution an invention made, not how it was implemented" as if the Tony Blair statement says something different.

The release sounds to be precisely in keeping with current UKPO practice to me, so I'm wondering which bit the Kat has issues with.

OK, true it uses the CFPH language of "advances" solely in the field of software rather than "contributions", but otherwise it's pretty much a recitation of the third step that the Kat has emboldened, assuming that "in the field of software" means "in the actual writing of a computer program" rather than, say, in the deciding what contribution you ultimately want your computer program to make.

David said...

It's probably a matter of interpretation. I object more to the petition itself and its misunderstandings than the government response. Admittedly, the response doesn't really say anything new, but I wonder whether the Sun Microsystems decision would go the same way if considered now. Your assumption may well be correct, but I suspect it might not be.

Nick said...

With reference to the IPKat's expressed concern that "what is more worrying is that 2,215 people signed it before the petition closed on 20 February", let me provide a little reassurance:

This voting tally is only about half the 4,109 people who signed this petition that "We the undersigned petition the Prime Minister to stand on his head and juggle ice-cream".

I think that puts the software petition in its proper context...

Gerontius said...

Is your concern more that Blair's statement will be seen as endorsement of the petition? I can see that as a very real cause for concern.

Looking again at the petition, it's a prime example of the mutually contradictory and muddled arguments of the anti-software patent brigade. First they complain that patents are being granted for software code, then they complain that these patents give no useful information for writing software, which only serves to highlight the very important point that the software code itself is irrelevant to the underlying contribution that is being patented.

Anonymous said...

Am I alone in considering David's objection to the petition does not excuse him unnecessarily using the term "dyslexic" in a manner which can only trivialise the problems of sufferers of this condition? As I am sure David is aware, there is a great difference between poor grammar and spelling and dyslexia.

David said...

The description of Richard Lightman as being dyslexic was purely to explain the grammatical and spelling errors in the petition, rather than pointing them out with "[sic]", which might just look as though I was making fun of them. I want people to look at the substance of the petition and not its superficial flaws. If you care to look at Mr Lightman's own admissions you will see that he would not take any offence by this, and that I am not trivialising his condition.

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