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Difference between revisions of "Shielding software from litigation"

(exemple to understand exception restricted to general-purpose computers)
(Advantages: Am. 8 - Article 8 - point ja (new))
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# This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change in patent eligibility criteria.
 
# This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change in patent eligibility criteria.
  
For the [http://endsoftpatents.org/unitary-patent EU regulation on the unitary patent], an amendment to exclude software from patentability has already been [https://www.unitary-patent.eu/node/5?comment_id_key=sjZI4tQ9Yff proposed]. It has been objected that this regulation was not about (re-)defining rules on patentability. But in this regulation there is already an article (Art. 8) defining exceptions to patentees' rights: for non-commercial private acts; experimental uses; medicines during patent term to obtain regulatory approval; extemporaneous preparations in a pharmacy of medicines; acts on or concerning foreign means of transport which temporarily or accidentally enter EU; acts as covered by the farmers privilege; some defined biotechnological acts; and decompilation of software in order to obtain informations necessary for interoperability.
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==For the EU unitary patent==
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For the [http://endsoftpatents.org/unitary-patent EU regulation on the unitary patent], an amendment to exclude software from patentability has already been proposed ([https://www.unitary-patent.eu/node/5?comment_id_key=sjZI4tQ9Yff Am. 8 - Article 8 - point ja (new)]). It has been objected that this regulation was not about (re-)defining rules on patentability. But in this regulation there is already an article (Art. 8) defining exceptions to patentees' rights: for non-commercial private acts; experimental uses; medicines during patent term to obtain regulatory approval; extemporaneous preparations in a pharmacy of medicines; acts on or concerning foreign means of transport which temporarily or accidentally enter EU; acts as covered by the farmers privilege; some defined biotechnological acts; and decompilation of software in order to obtain informations necessary for interoperability.
  
 
An amendment implementing Stallman's suggestion for an exception for "developing, distributing, or running a program on generally used computing hardware" would be easier to be adopted.
 
An amendment implementing Stallman's suggestion for an exception for "developing, distributing, or running a program on generally used computing hardware" would be easier to be adopted.

Revision as of 06:15, 8 November 2012

Another approach to ending the problems of software patents would be a law saying, as Richard Stallman puts it, "that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement."[1]

The result is the same, but this approach may be much simpler to implement.

Advantages

  1. The main advantage is that this avoids the need for a legal definition of "software patent". Patents no longer have to be classified as software or non-software. "Software" patents can still be granted, but no patents can be used to attack people for developing or distributing software.
  2. Interpretation of the law lies directly with the judge, instead of the patent office.
  3. The wording of the patent is no longer important, so the ingenuity of patent lawyers for finding loopholes and confusing wordings can no longer influence the chances of a lawsuit succeeding against a software developer.
  4. This creates a clear situation for already-granted software patents, rather than leaving a question mark over whether they would be upheld or invalidated by a court after a change in patent eligibility criteria.

For the EU unitary patent

For the EU regulation on the unitary patent, an amendment to exclude software from patentability has already been proposed (Am. 8 - Article 8 - point ja (new)). It has been objected that this regulation was not about (re-)defining rules on patentability. But in this regulation there is already an article (Art. 8) defining exceptions to patentees' rights: for non-commercial private acts; experimental uses; medicines during patent term to obtain regulatory approval; extemporaneous preparations in a pharmacy of medicines; acts on or concerning foreign means of transport which temporarily or accidentally enter EU; acts as covered by the farmers privilege; some defined biotechnological acts; and decompilation of software in order to obtain informations necessary for interoperability.

An amendment implementing Stallman's suggestion for an exception for "developing, distributing, or running a program on generally used computing hardware" would be easier to be adopted.

Limits of effectiveness

Richard Stallman says that this exception would not apply to software on "special-purpose hardware". I wonder how this effects the overall outcome... but Stallman doesn't see this as a problem, so maybe it isn't:

This approach doesn’t entirely invalidate existing computational idea patents, because they would continue to apply to implementations using special-purpose hardware. This is an advantage because it eliminates an argument against the legal validity of the plan.

Let's take the example of software patents on MP3.

If Stallman's proposition to limit effects of software patents only to "generally used computing hardware" is passed, sellers of MP3 reading devices (hardware) will still have to pay a license (the price being transfered fully or in part to consumers) to MP3 patents' holders. The latter could till file patents on compression/decoding of audio formats. The MP3 algorithms are implemented on circuits, that is on "special-purpose computers". The exception do not apply.

Conversely, developers and users of software for reading MP3 would not be feared the existing patents, nor future patents. Such software is implemented on "generally used computing hardware", that is "general-purpose computer". Developing, distribution and running such software on general-purpose computer is covered by the exception.

This effect is very different from a solution based on the exclusion of software from patentability. If such an exclusion is passed, nobody could fill patent on encoding/decoding audio algorithms any more (for eg. on an imaginary MP138 format). Makers of MP138 reading devices would not have to worry (and consumers won't see any change). Developers and users of software for reading MP138 neither.

Conversely, holders of existing software patents on MP3 might want to continue to get some royalties, both from makers of MP3 reading devices (with cost transfered to consumers), and from developers and users of software for reading MP3. If there is a litigation, these patents might be invalidated, since they have been mistakenly granted on excluded subject matter.

US surgeon's precedent

Such a shield already exists since 1997 for surgeons in the USA in 35 U.S.C. Section 287 (c), sometimes called the "Ganske compromise legislation":

(c)

(1) With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271 (a) or (b), the provisions of sections 281, 283, 284, and 285 shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.
(2) For the purposes of this subsection:
(A) the term “medical activity” means the performance of a medical or surgical procedure on a body, but shall not include
(i) the use of a patented machine, manufacture, or composition of matter in violation of such patent,
(ii) the practice of a patented use of a composition of matter in violation of such patent, or
(iii) the practice of a process in violation of a biotechnology patent.
(B) the term “medical practitioner” means any natural person who is licensed by a State to provide the medical activity described in subsection (c)(1) or who is acting under the direction of such person in the performance of the medical activity.
(C) the term “related health care entity” shall mean an entity with which a medical practitioner has a professional affiliation under which the medical practitioner performs the medical activity, including but not limited to a nursing home, hospital, university, medical school, health maintenance organization, group medical practice, or a medical clinic.
(D) the term “professional affiliation” shall mean staff privileges, medical staff membership, employment or contractual relationship, partnership or ownership interest, academic appointment, or other affiliation under which a medical practitioner provides the medical activity on behalf of, or in association with, the health care entity.
(E) the term “body” shall mean a human body, organ or cadaver, or a nonhuman animal used in medical research or instruction directly relating to the treatment of humans.
(F) the term “patented use of a composition of matter” does not include a claim for a method of performing a medical or surgical procedure on a body that recites the use of a composition of matter where the use of that composition of matter does not directly contribute to achievement of the objective of the claimed method.
(G) the term “State” shall mean any State or territory of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(3) This subsection does not apply to the activities of any person, or employee or agent of such person (regardless of whether such person is a tax exempt organization under section 501(c) of the Internal Revenue Code), who is engaged in the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy or clinical laboratory services (other than clinical laboratory services provided in a physician’s office), where such activities are:
(A) directly related to the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of matter or the provision of pharmacy or clinical laboratory services (other than clinical laboratory services provided in a physician’s office), and
(B) regulated under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, or the Clinical Laboratories Improvement Act.
(4) This subsection shall not apply to any patent issued based on an application the earliest effective filing date of which is prior to September 30, 1996.

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