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[JimIvey]

http://software.newsforge.com/article.pl?sid=05/04/05/1256237
[TinyURL: http://tinyurl.com/3vc6r]

There are ongoing discussions in Europe to determine the future of EPO patents vis-a-vis computer-related inventions -- sometimes referred to as software patents.  This article focuses on a recent letter of one group adamantly opposed to software patents.

While I'm sympathetic to the perspective of the OSS community, I have to admit I'm somewhat amazed at the level of misinformation, urban legend, and pure fantasy in the minds of some as they play "what if" scenarios in relation to patents.  That letter appears to be a classic example of a FUD campaign.

As for software patents, I'm still not convinced software can be effectively carved out of patentable subject matter -- simply as a practical matter.  Many innovations lend themselves to both software and hardware implementations -- or a hybrid implementation of part hardware and part software.  Typically, claims in computer-related patents will cover both hardware and software implementations.  Are these patentable or not?  If not, then a whole category of invention that was clearly eligible subject matter pre Diamond v. Diehr is now removed.  That seems ridiculous.  On the other hand, if such hardware/software innovations are eligible subject matter, purely software implementations will infringe -- and the patent will cover software.

Whatever solution is picked is likely to be both over inclusive and under inclusive.  The only solution I see is the exclusion of purely software implementations as infringing -- focusing on the infringement analysis and not the patent claims.  However, I don't see any reason why that's a useful solution.

In particular, I don't see any justification for carving out software as an excepted class of innovation.  Most of the arguments I've seen applied against software patents are equally applicable to all classes of innovation.  I have yet to see a compelling argument as to why software should be treated differently.

Any thoughts?

[eric_stasik]

If Pythagoras was to come up with his theorem today, in a software patent regime he would clearly be entitled to get a monopoly on it. Pythagoras could then arbitrarily select the conditions under which others could make use of or build upon his idea.

- Georg Greve President Free Software Foundation Europe.

Mr. Greve need to buy himself a clue. If the level of ignorance was not so alarmingly high, it would be humorous. Laws of nature have never been patentable and no one is suggesting that this be changed.

There may be problems with extending patent protection to software, but this is not one of them. Silly, silly, examples like this do nothing to advance the debate or increase the level of understanding.

/Eric Stasik