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Corante Blog

Friday, September 29th, 2006

SHiFT: Dannie Jost - Patents and software

Posted by Suw Charman-Anderson

Legislation was invented in the 18th century, and it’s not able to cope with the 21st century. Worked for the patent office so has a background.

Software should not be patented at all, it should be exempted at all times.

No one in the audience has a patent.
Lots of people have coded.
No one has ever applied for a patent.

Code is language, like literature, mathematic, and belongs to the domain of culture. Code is not a machine, it’s abstract, an intellectual endeavour. Usually code get packaged and is called software. It’s not physical yet it’s made physical.

Intellectual property:

- literature
- scientific
- art
- music

design 5 x 5
Patents 20 + 5
trademarks 10 yrs x X
trade secret - only good way to protect code

Why do you need to know about software patents?

1. Software is patentable in the US
2. Software is not patentable in ‘EP-land’, i.e. ‘European Patent’-land, Swiss are part of the European Patent Convention, also includes Moldavia. (Community patent does not exist yet, but it is a project.)

What is a patent?
“a title issued by a governmental entity that entitles the owner to a geographically and time limited monopoly.”

It’s a deal you do with the government. They let you have a monopoly for a limited time for a specific geographical area and your part of the deal is to disclose your invention, you publish the details.

Different types of knowledge: public domain and proprietary knowledge.

Wipo tells you what you can patent. Picks words very, very carefully - very legal domain. Have to be as exact as possible, terminology is important.

What are patentable inventions?
- new
- industrial application
- involve and inventive step, which must not be obvious to the people who know the field concerned.

Exclusions to the European Patent Convention
i.e. stuff you can’t patent
- discoveries, scientific theories and mathematical methods
- aesthetic creations

This is just for European patents.

Patent paths. How do you get a patent?
- apply
- examination
- grant
- admin

Can file for a patent locally, or in WIPO in Geneva.

Three different groups that regulated. World patents done by PCT, in Geneva, can pick which countries you want to patent in, e.g. China, Portugal, US.

So there are software patents in Europe although they are not allowed, because through the PCT route you can get American specifications turned into European patents. This is why even if you are fully open source, fully free software, and if you are a developer or programmer and are serious about writing an application or starting a business which your intellectual capital is code, you better be aware of what is out there in terms of software patents. This is not about just filing a patent, but being aware of what is out there.

Very expensive. Not friendly to individuals, freelancers or even SMEs. Cost of the EP patent that is one of the driving forces pushing the Community Patent.

Software patents, therefore
- exist
- are enforceable
- part of the public domain

How do you find this stuff?
- open source
- publications
- expired patent applications

Sates of the art
- all publications in any language available up to the filing date.

So if you wrote your algorithm on a napkin and left it in a restaurant, that’s in the public domain. So patent then not valid as ‘novelty’ is destroyed. (Novelty can only be destroyed, it can’t be proven.)

Lots of patent databases.
Several prior art wikis.
Can also use search or metasearch like Clusty.

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4 Responses to “SHiFT: Dannie Jost - Patents and software”

  1. P.L.Hayes Says:

    Software (information processing) ‘inventions’ certainly are patentable at the EPO and at the Patent Offices of most individual European states. It’s got nothing to do with the PCT or “American specifications”. It is (mainly) because of the teleologically motivated and absurd* interpretation of the EPC’s “as such” clause developed over the years by the Boards of Appeal of the EPO.


  2. Marco Menardi Says:

    “you better be aware of what is out there in terms of software patents”
    should be
    “you better fight software patents tentatives of introduction in Europe will all your strengths”, because if you just know that EPO has approved about 30,000 (illegal) sw patents in Europe so far, you realize that you simply have to STOP CODING and do business that have nothing to do with software. There is no escape, every (non trivial) program infringes many patents, and if you are sued, you are ruined.
    So help the fight (the current one is against EPLA proposal), also with monetary donations:

  3. rattus Says:

    Many thanks for these wonderful notes. Patents, software patents in particular, are sure a twisted and delicate world on its own.

  4. Alex Gault Says:

    For anyone interested in participating in a community and broader discussion about about intellectual property and patents, you may be interested in LegalForce, an online marketplace for intellectual property that just launch in beta format this week.

    LegalForce is both a marketplace where patents can be bought, sold and licensed — and a professional network for inventors, entrepreneurs, IP professionals, attorneys and investors and anyone else interested in innovation and invention. The site includes groups, discussion boards, videos, event listings and a classified section.