Software patents, ah… It’s like the seemingly never ending saga of SCO. Can’t they just leave us in peace?
Soon, the Enlarged Board of Appeal (EBA) at the European Patent Office (EPO) will decide on several questions about software patents, asked by the President of the same organization. We’ll soon find out what kind of independence might or might not exist among the various layers of the EPO… (Interesting setup, for that matter.)
The questions, and some responses from the global community, can be found on the EPO page. Notably, replies from Jacob Hallén (FFII) and Philips are available there. URLs seem to be dynamic so please look these up on the page, right now under “23.10.2008 Case G3/08”. (My organization has no official submission as of yet, the deadline is the end of April.)
Sadly, the questions posed to the EBA are mined with typical EPO philosophy including their definitions of “technical effect”, “further technical effect”, “technical character”, “technical considerations” and other terminology they have used over the years. In that way they justified black being white, or more specifically the applicability of software patents (but, naturally, not “as such”).
Seeing how the specific questions to the EBA are phrased (quite some traps in there), and what is not asked, it seems clear to me that any set of answers with just “yes” or “no” is unable to speak against software patents in any meaningful way. Furthermore, if only one was to accept the premises of the questions, I submit that seemingly innocent arguments could be twisted in a number of ways to justify software patents. Nice job!
In their reply, Philips seems to have got the general idea: (page 4)
“[…] the claims define the invention in terms of the technical features […] is a technical feature if it has a technical effect. Whether this technical effect is on the computer or on the outside world, is irrelevant.”
Rough translation: “if it’s a new thing that required some thinking to come up with, and it runs on a computer, you can patent it”.
Considering how this opinion seems all too easy to find in certain circles, we have a pessimistic press release on this subject.