Re: [Fsfe-uk] Fwd: UK Leading Patents?

[Alex Hudson]

On Sun, 2002-03-10 at 16:20, Xavier Drudis Ferran wrote:
> The hardware clock seems not so bad after all,  I don't understand 
> what is making old messages appear as new. Anyway,  that's offtopic.

If it's a laptop, check the suspend/resume - I had the same prob. Still
OT, sorry.
 
> The CEC directive proposal ("COM(2002)92 final", IIRC).

Hartmut also directed me to that. I think we all agree that is an
undesirable document.

> If FET is patented and then you write a simulator for a
> FET, you are not infringing. You are publicizing, disseminating a 
> patented invention,and that is the whole purpose of the patent system.

But a patent is essentially a licence on an idea. I just don't see an
example of a patent on electronics/other that couldn't be bypassed by
software, which would make the patent worthless. 

> It is exactly the same as when you write a book on a patented invention. 
> Of course the fact that the book is written after the patent is not an 
> infrigement, even if that allows you to reproduce the output function of
> a FET with pen and paper. 

A book doesn't let you emulate the invention. You couldn't use the book
as a FET. The software you can - that's the similarity I'm trying to get
across.

> I don't know about guitars, but I pressume is the same case, 

I simply used the case of Roland VGuitars as an example of the practical
application of emulating physical hardware in software; nothing else :)
I was trying to show that modelling the real world in software is not
just some curious corner-case.

> I'm supposing there is a guitar with some device that produces some 
> efects and that device is patentable, andthere is a program that uses 
> a sound card to produce soundeffect undistinguishable  from the guitar 
> device effects, at least to the naked ear. If that is not what you
> meant, sorry.

Exactly. Essentially, you could have two devices - a CryBaby, for
example, which is - I'm sure ;) - a patented electronic device, and an
emulation device like the VGuitar COSM system. With electronics
emulation, there is essentially a one-to-one mapping between the
physical and the software: that mapping would allow you to implement any
patented device without doing any work, and thus it wouldn't be worth
patenting the device in the first place, even if we agreed that the
patent was a good, novel, one.

> bad aas such ;op. The problem is when you don't define "technical" as in 
> DispositionnenProgram (sorry, one day I'll learn  to spell it), but you
> leave it open

I disagree this is the problem. Attempting to fit UK law into German
won't work; the two are incomparable. I've seen no example so far of how
using 'technical effect' and case law rather than dispositionnprogram
has led to greater bad patents. Remember the following:

* bad patents occur for a number of reasons - if a software patent is
granted, it's not necessarily because it is deemed to have a technical
effect;
* the granting of a patent is a mere registration - there is no
guarantee that the patent would hold up in court (that is the
responsibility of the registrant), nor will the UKPTO protect
patents/take sides in patent disputes.

Thus, not only would it be possible to find bad UK patents, you'd
probably expect it.

You may not like the fact that bad patents can become registered only to
need defeat in court later, but again, that is somewhat similar to our
case law method. Bad patents will always be registered, as will software
patents, no matter how obvious Article 52 is. The problem is when they
are enforceable. I don't believe a software patent would be enforceable
in the UK today.

>  What do you  find contradictory exactly?. Confusing?. Unsupportable?.

The fact that you can have two black boxes, and one of them is
patentable and one of them isn't, even though they do precisely the same
thing. The difference is one is built out of FETs and the other DACs and
processors.

But, even though I find your argument contradictory, don't mistake that
for me supporting the CEC proposals; I don't. I just don't support them
for different reason: the fact that software is not deserving of any
exploitation right due to small R&D costs. So, my black boxes would be
in the same state as yours: one patentable, the other not. But I find my
argument consistent.

> But I don't think you can tell the patent office to  make an economic
> assessment of each particular case and see whether it is worth it, 
> without any guidelines. 

Sorry, I didn't mean to suggest that was how I thought it should work.
The basis for me being against software patents is that the
justification for patenting in general doesn't hold for software. The
patent office shouldn't be making an economic assessment, it should just
throw the application out :)

> I don't know about the  UK, but I think a patent office should be civil
> servants not elected politicians, and they should apply cear criteria, 
> not decide on  economic policy.

They don't decide policy. But, they do give advice on it, and ultimately
are part of the same system. If the feedback they get is pro-patenting,
then I would expect them to lobby for increased patentability. It is
probably the case that the UKPTO hasn't been lobbied sufficiently by the
anti-patent lobby.

> So we better find a good criteria to decide what to patent. I think the
> harnessing nature idea works well to make that choice.

I would leave it at 'software is not included'. Technical effect or
dispositionnprogram or whatever, it shouldn't matter.

> Or more genuiney: what do we do with VHDL ? For me it is software, but
> you may not call it so. It is logic, after all. So  we better exclude 
> logic and that will save us trouble

VHDL I would leave patentable, I _think_ (I don't know it at all). To
me, it appears to be a description of a system, not the actual system
itself. VHDL compilers are supposedly very sophisticated, and I would
suspect the actual device created would not actually be based on the
VHDL aside from the fact that the devices are functionally identical. 

At the end of the day, everything in this world is mathematical.
Algorithms are what the universe is made of, everything we do is
algorithmic. Defining what is mathematical and what is not is ultimately
useless. I would fall back on the economic argument: electronics R&D is
expensive, as is manufacture. Electronics researchers seem deserving of
patent protection; software researchers do not.

> I want that in case you patent,say, an engine in which a sensor feeds 
> pressure data to an embedded computer that outputs control signals for
> fuel valves,because it wasn't previously known that the pressure
> sensed there would be an useful input to calculate the optimum input
> of fuel, then I want  to be prohibited to sell the engine, but not
> the embedded computer software

This doesn't seem like an example of a combined physical/software
patent. You did say that you had no problem with software forming part
of a patentable system: if that is the case, though, taking the software
away must make the patent invalid, because otherwise it's not part of
the patent. Again, I find this argument confusing. I personally don't
believe there is any such thing without admitting the possibility of
partial software patenting in a similar manner to the UKPTO.

Cheers,

Alex.

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