Comment by bergie | Hacker News Reader

Comment by bergie | Hacker News Reader

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Be careful with this, according to the Debian patent FAQ prepared by Software Freedom Law Center (http://www.debian.org/reports/patent-faq) you can get tainted by reading patents:

Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first.

That said, I'm happy to live and work in Europe where we don't need to deal with this crap.

Unfortunately, you still need to deal with this crap, thanks to the Patent Cooperation Treaty, and more broadly the Paris Convention. While it goes without saying that neither of these treaties means that a U.S. patent is enforceable in Europe, a party with deep enough pockets can file an international application in all the Paris countries, entitling them to the protections afforded by those countries. While the PCT does not mention anything about patentable subject matter in international applications, you still need to be familiar with your jurisdiction's patentability requirements.

Thankfully, Art. 52 of the European Patent Convention is pretty sensible in that it does not regard discoveries, scientific theories and mathematical methods, aesthetic creations, and "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" as patentable subject matter.[1]

[1] http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/...

We have softpats in UK and rest of Europe too. Indeed Europe is more liberal than UK. Also, depending on the field some discoveries (gene sequences) [sort of] and mathematical methods [definitely, eg codecs, compression algos] get patented. The important thing is that in Europe there needs to be what used to be called a "technical effect". That is not just software but software with some real world outcome, eg if your software gives you longer battery life then that aspect of the software is patentable.

As for PCT. Patents enter the national or regional phase and get examined against the local patent law. Some countries may be inclined to rubber stamp already granted patents (saving time and money). Certainly USA searches for PCT used to be the only ones that were guaranteed _not_ to be thorough!

Wait ... I want to verify if I read this correctly ... Europe does not have software patents?

I was referring to business method patents, not software patents. Art. 52 paragraph 3 clarifies what's in paragraph 2:

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such (emphasis added)

This is where I imagine much of the confusion lies. My interpretation combined with a brief search on google seems to indicate that software could make its way into patentable subject matter if it's a subset of a larger system, but not if its the sole "invention" claimed in the patent.

In other words, if you have a hardware device running embedded software, you could patent the device, including in it "programs for computers." Thus, Art 52 doesn't mean that all inventions including computer software are, as a matter of law, not patentable.

Correct. The way it is limited may of course depend on the local law. For example in Finnish patent law only "real things" can be patented, not products of human intelligence, which limits stuff like algorithms, software, business models etc. outside the scope of patentability.

There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked:

http://eupat.ffii.org/log/intro/

>There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked:

Nonsense. We have software patents in Europe too.

It's somewhat complex, but in general most of the contentious US software patents wouldn't be valid in the EU, which is why Europe has only seen a handful of software patent cases over the last decade.

See http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...

Imho the best example for this is that the Motorola Droid comes with multi-touch features in Europe, as opposed to the Droid of all countries were Apple holds the multi-touch patent.

I don't know about Europe, but in the US "Droid" refers, specifically, to an Android device offered by Verizon; and, it is an exclusively licensed trademark by them to use in this context by Lucas.

IIRC, it was called the Motorola Milestone in Europe. Exactly the same phone, though.

Yes, you should avoid reading patents that relate to areas that you actively work in.

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