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List:       kde
Subject:    Re: [kde] KDE can help FFII fight threat software patents
From:       Jonas Maebe <jonas.maebe () elis ! ugent ! be>
Date:       2004-07-28 11:27:08
Message-ID: 0FECD93B-E089-11D8-BB40-000D932B3AF8 () elis ! ugent ! be
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(Ante forwarded your mail to nl-parl at ffii.org for feedback)


On Tue 27 July 2004, at 19:02, James Richard Tyrer wrote:

> "The examples of #8 & #17 are most relevant here
>  since these are not software patents but rather patents of numerical
>  compression algorithms. So, the elimination of software patents will 
> have no
>  effect on these."

It depends on what your definition of "software patent" is, I guess. In 
Europe, mathematical methods, business methods, discoveries, scientific 
theories and computer programs (among other things) are excluded from 
patentability, but only if the patent pertains to one of those things 
"as such".

What this originally meant was that while a computer program/... is 
never patentable, a (technical) invention which requires e.g. a 
computer program to function does not become unpatentable because of 
this computer program. The European Patent Office (EPO) has now twisted 
this reasoning around, and claims that this exclusion actually means 
that "a computer program not as such is patentable". An example of "a 
computer program not as such" is "a computer program executed by a 
computer". An example of a mathematical method not as such is "a 
mathematical method applied to physical data, such as image data".

The practical upshot is that computer-implemented business and 
mathematical methods (such as mp3- and jpeg-compression) are now 
patentable according to the EPO, but only if you say that these things 
are performed by some device or if they operate on "physical data" (so 
the "algorithm/computer program as such" can't be patented and only a 
"practical application with a further technical effect", although there 
is virtually no difference in practice).

Therefore, we call all patents on things which are normally not 
patentable, but suddenly become patentable if you use the appropriate 
juridical techno-babble, "software patents". More generally, a software 
patent is a patent whereby the novelty completely lies at the 
mathematical/abstract logic level.

A better and more general name would be "logic patents", but the name 
software patents is used because it's the most widely known term (and 
in general such patents are almost always used to forbid the 
exploitation of computer programs).

Eliminating software patents the way the European Parliament proposed, 
would keep such patents unenforceable in Europe.


Jonas
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