On Monday, March 7, 2005, European government ministers approved a directive designed to reform how patents are handled in the European Union. The European Parliament (which includes some opponents of the directive), will ultimately vote on the initiative, which will either become law or be rejected.
At issue in the directive is whether the European Union will have an EU-wide system for enforcing patents (currently handled on a national level), and whether Europe will allow broader patent protection for software.
Different constituencies are sharply divided on the directive, especially regarding software patents. Many in the software and high-tech industries have argued that software patents are necessary to provide an incentive for innovation, just as patents provide a strong incentive for the development of other types of technology. Detractors (including many in the open source movement) argue that software patents are actually a hindrance to innovation.
Like many debates, the answer is likely somewhere in-between the two extremes. The incentives necessary to foster innovation for software development are no doubt a bit different than other fields (such as pharmaceuticals). However, they are still needed.
Moving forward, the key will be to find just the right balance. Hopefully, lawmakers will make changes to the law if needed, but won’t discard software patents altogether.
Loading ...
I was involved in 2003 in making representations to the EU Patent office to exclude “business method” and software patents from the scope. For small-ish businesses which depend for their “edge” on being better, more agile and more efficient than larger, bureaucratic companies, these patents can kill innovation. On the basis that “all functioning technology is equivalent” or that there are many routes to the same destination, it seems inappropriate to constrain innovation. The notion of progress of necessity implies that one builds upon the knowledge, experience and insights of previous generations: if bizmeth and software patents are allowed, why not allow the patenting of political thought? of economic policy? of critical theory or management consulting approaches?
There’s a certain rationale to protecting industrial design since the “old economy” paradigms of investment and entry costs still remain. For a knowledge economy, however, there’s a fundamental inconsistency at the heart of the policy which needs addressing: we pay taxes to educate people and encourage lifelong learning; we encourage innovation; we celebrate study and learning - yet we simultaneously look to allow people to patent their particular spin on prior art.
Just to round off with a practical note (to balance the mad situation that’s emerging in the US) is to say that the only sane retort is - if we’re going to allow these patents - is to force licencing of such patents at a rate that takes into account the level of prior art and the level of “obviousness”.
One-click-ordering as a patent anyone? Please save me from this madness!!
Keep in mind that “business method” patents as allowed by the U.S. Patent Office (USPTO) generally must be deemed to be “automated business methods”. The courts and the USPTO have never expressly stated this, but all case law in this area that I’m aware of has dealt with AUTOMATED business methods (It may help if the U.S. courts resolve this point definitively - otherwise, there will continue to be much confusion on this point).
Are automated business processes that are performed by machine (computer, Internet, etc.) that much different than other automated processes? While the economics regarding incentive can vary in degree, all such processes have uses and practical applications.
That said, “political thought”, “economic policy”, and “critical theory or management consulting approaches” would not be patentable under U.S. law, unless there was some automated application of same that produced a concrete, tangible effect. The mere concepts would likely be deemed “abstract ideas” under U.S. patent law, and thus not patentable subject matter.
As a patent attorney assisting clients with software and business method patents for the past 15 years, the real problem as I see it is two-fold - (1) lack of access by examiners to the best prior art, and (2) lack of expertise by patent examiners to allow and grant quality patents. These are procedural (not substantive) problems that can be improved upon. If these problems are addressed, then software and business method patents should prove as useful and legitimate as patents for any other type of invention.
That’s really interesting Greg - I see the distinction. My concern really is that the “automated” aspects of the business process can sometimes seem a tad trivial (eg the one-click ordering: there are so many equivalent ways that this could be implemented, all of which would be opaque to the user). Actions to defend a back-end, automated and opaque process can cause confusion: if I put a button to allow one-click ordering, then that could elicit a shot across the bows from lawyers, but they couldn’t tell from “my button” whether the automated process is infringing that which powers “their button”…
You’re absolutely right about the prior art point. There was some discussion in the open source community about documenting further and making this accessible as a ‘prior art’ library. The contact at the European Patent Agency was keen to find challenges that were knowledgeable and accessible to allow a rapid checking of prior art. She was, at the time, looking at an application where there were 3 OSS long-standing applications that I knew of, and I’m only barely literate in this area.
While I can’t comment on the expertise of PAs, it’s certain that the majority of the ones I know are engineering or science graduates, rather than software engineering. This will of course take time to change. In the meantime, however, the major increase in the volume of applications to the various agencies.
The complexities of these issues makes life difficult for SMEs, especially since funders, VCs and even normal retail banks will now question CEOs on their protection of IP during funding/financing discussions.
I think it would be useful for you to take a look at the actual patent claims of Amazon.com’s 1-click patent. Amazon.com’s patent doesn’t protect the 1-click concept from an abstract perspective, as you suggest. Rather, like all patents, what is actually protected is spelled out in definite steps/elements in the claims.
For example, claim 1 of Amazon.com’s 1-click patent (U.S. patent 5,960,411) reads:
1. A method of placing an order for an item comprising:
under control of a client system, displaying information identifying the item; and in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system; under control of a single-action ordering component of the server system, receiving the request; retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and fulfilling the generated order to complete purchase of the item whereby the item is ordered without using a shopping cart ordering model.
To infringe claim 1, a third-party must be practicing EACH AND EVERY recited step. If even one element is not performed, then there’s no infringement.
While I agree that its sometimes difficult to detect infringement, in the case of the Amazon.com 1-click patent, I think infringement could be readily detected.
In my opinion, it’s exactly these types of patents that are needed to allow the SMEs to compete with the big companies. Without such patents, any large enterprise could readily run right over the rights of an SME.
Again, however, I agree that patent quality needs to be improved.
The details you’ve quoted Greg are very generic and I believe state the obvious. Carts were used simply to aggregate and store purchases for a ‘bulk checkout’ later ie like a real life supermarket. Much of the usage of interstitial steps was driven by the perceived need for customer feedback and reassurance.
The process outlined is effectively a combination of stored profile (cookie based in implementation) and presentation ie the page presents the “we know who you are and that you’ve enabled One-Click and here’s everything you need to know about the item”. In amazon’s case this is conveyed by the fact it has your name on the page and the one-click icon. Clearly the book information is also shown.
The two counterarguments to your position are:
1) the process is less onerous than, say, link-tracking and management from say embedded links in a newsletter (edition, recipient, offer code, version) and tracking activity from newsletter to site. If you substituted “read” for “purchase” then this would be effectively the same. For subscription sites it is the same.
2) an SME would come up with a similar, pragmatic and - dare I say? - common sense approach to a problem and then find that they were in breach of a previous patent.
My suggestions to clear up this system would not be to make patenting more prevalent for SMEs, nor necessarily easier, but rather to prevent granting of patents that are obvious solutions to a presenting problem which are within the grasp of any reasonably skilled person.
Patents are at their heart mass-industrial instruments, to protect the result of demanding, expensive and innovative developments or inventions. They are intended to protect you from your large, equally-well funded and similarly capable competitors and provide licencing as the exploitation route rather than theft.
The sooner software patents focus upon v hard stuff and omit the obvious the freer and less encumbered life will be for SMEs.
The sooner the whole process and system looks after all businesses it will always be flawed!
Anti-trust and patent management should all be a lot clearer, companies can do well looking to sun micro systems and how they manage theirs.