Choose your words

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You have to choose your words carefully. Some words have developed strange meanings and interpretations. If you're not aware of these, there's a risk that your message will be meaningless.

Contents

[edit] Pitfalls to avoid

[edit] As such

The words "as such" can make an exclusion meaningless. If you exclude "software as such" from patentability, this can be interpreted as "software, as software" which means that if software is loaded onto a computer, maybe it can be considered "as a device" or if it's executed, it could be considered "as a process", in which case the exclusion would not apply.

The "as such" wording exists in the European Patent Convention and in the legislation of South Africa.[1]

[edit] Per se

The USPTO's Board of Patent Appeals and Interferences notes that "there is no authority that we know of which permits software per se to be considered statutory within 35 U.S.C. § 101."[2] and yet, the USPTO approves thousands of software patents per week. Clearly, "per se" makes software exclusions meaningless. The USPTO also uses this term, as of 2009, in the "interim guidelines" regarding patentable subject matters that they published after the first Bilksi case, while waiting on the outcome of the Supreme Court's Bilski ruling.

In general, per se ("by itself") is very likely to have the same problems as "as such". If a patent office or a court wanted to accept software patents, it would be easy to argue that software+computer is patentable because it's no longer just "software per se".

[edit] Solving technical problems

If ideas must be "technical" to be patentable in a jurisdiction, then we must ensure that this criterion is applied to the idea or the solution, not the problem that's solved.

Consider a lift who's configuration prevents it from stopping at the fourth floor, where meetings are held. This problem can be solved by modifying the electronics in the lift. But it can also be solved by holding meetings on the third floor.

If patents are allowed for solutions to technical problems, then both solutions would be patentable even though the latter isn't a technical solution/idea/innovation.

And then, of course, there must be a clarification that software ideas are not considered technical.

[edit] Suggestions to exclude swpats

If you don't have a legal wording that has been thoroughly examined for faults, one option is to tell politicians that "no patents should be allowed to limit developing, distributing or running software on general-purpose hardware such as a PC".

[edit] European Union

"controllable forces of nature"

This term was previously used in German (see Case law in Germany) to exclude software patents. In Japan, a similar term "utilising the laws of nature" was used until 2000. This term was proposed by the anti-swpat movement in the EU for the European Parliament's first reading of the Software Pantents Directive (September 2003).

"applied natural science"
(see EU 2005 proposed amendments)

[edit] USA

Wording suggested by ESP during the Bilski case in the USA:

  • "a process must involve significant physical activity"

A wording that has been used repeatedly by the USA's Supreme Court:

  • "insignificant postsolution activity" - should exclude an invention from patentability

From Google's brief in Bilski v. Kappos:

  • "non-conventional use of a machine" or "tied to a particular machine or apparatus in a non-conventional manner"

[edit] India

The wording in current India law is:

[edit] Groklaw's suggested wording

Groklaw developed language designed to exclude software from patentability in response to UK Patent Office testing of definitions in 2005. The language drew its inspiration from amendments offered by MEPs to the Computer Implemented Inventions Directive. A Groklaw Suggestion on SW Patent Wording. Defined terms are:

  • "technical contribution"
  • "software"
  • "physical device"
  • "carrier"
  • "information"

[edit] Related pages on en.swpat.org

[edit] References

  1. ↑ http://www.cipro.co.za/legislation%20forms/patents/Patent%20act.pdf
  2. ↑ Ex parte Yang-Huffman, Appeal 2007-2130, slip op. at 3 (Bd. Pat. App. & Interf. Oct. 4, 2007) (non-precedential)
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