Can someone explain me how the Munich court can tell that to Netflix since software patents aren’t supposed to be patentable as the Article 52 of the European Patent Convention say.
https://en.m.wikipedia.org/wiki/Software_patents_under_the_E...
https://en.m.wikipedia.org/wiki/Software_patents_under_the_E...
But that principle was weakened over time, first by saying that the novel part of the invention did not have to extend to the hardware, just that any novel part in the software had to also be inextricably linked to the hardware, even if there was nothing novel in the hardware portion. That was not per se unreasonable, but then opened the gate for further exceptions.
Exceptions were created for software that e.g.:
- did calculations on a computer that were then manually used to configure hardware, e.g. calculations for how to adjust diving equipment, even if the computer had no physical connection to the equipment. - low-level system software, such as page buffers, even if it was abstracted over the actual hardware. - Programs that tested the validity of chip layouts.
Basically, whenever something could related to hardware, however indirectly (even in a roundabout way, e.g. through energy or memory savings), even if the novelty was unrelated to the hardware, courts were likely to find a way to rule that the software is patentable.
So of course they're looking for any loophole they can find to pass more patents. And even if the loopholes turn out to be of the wrong shape, it's not their problem.
But h265 looks purely algorithmic to me. Perhaps the patent is about using dedicated hardware decoders, but I'm not sure how that would impact Netflix. Netflix is software on the consumer side.
So are patents of physical devices. Those algorithm just uses levers or whatever.
Don't forget that the first computers were teams of humans.
What is not patentable is taking a previously existing algorithm, prior-art, and claiming patentable novelty by performing that algorithm on a computer.
> The European Patent Convention (EPC), Article 52, paragraph 2, excludes from patentability, in particular
> 1. discoveries, scientific theories and mathematical methods;
From the European Patent Convention guidelines: https://www.epo.org/en/legal/guidelines-epc/2023/g_ii_3_3.ht...
> The exclusion applies if a claim is directed to a purely abstract mathematical method and the claim does not require any technical means. For instance, a method for performing a Fast Fourier Transform on abstract data which does not specify the use of any technical means is a mathematical method as such. [...]
> If a claim is directed either to a method involving the use of technical means (e.g. a computer) or to a device, its subject-matter has a technical character as a whole and is thus not excluded from patentability under Art. 52(2) and (3).
[...]
> When assessing the contribution made by a mathematical method to the technical character of an invention, it must be taken into account whether the method, in the context of the invention, produces a technical effect serving a technical purpose.
> Examples of technical contributions of a mathematical method are: [...]
> - encoding data for reliable and/or efficient transmission or storage (and corresponding decoding), e.g. error-correction coding of data for transmission over a noisy channel, compression of audio, image, video or sensor data;
The computer science definition is all the same.
Algorithm = documentation or specification, not software.
As soon as you involve algorithms, it's not all that different from an actual machine or engineering system from a patent law point of view. Which is why you find the words like "method" or "apparatus" in a lot of patent claims. That's the little legal loophole that makes something an actual patent vs. just a "software patent".
Whether it's enforceable or gets past the patent office review is a second thing of course. In the case of the infamous 1 click shopping patent, the answers turned out to be that there was a lot of prior art and the EU declined to accept the patent for being too obvious. In the US it did get accepted but then a later ruling invalidated most of the claims. The patent expired a few years ago.
Having the patent is one thing; enforcing it another. The US being a bit more eager to accept all sorts of obvious patents has been used by patent trolls to harass small companies into payments. And it's also uses as a defensive tool by all sorts of big companies as a defensive tool and as a way to get other big companies to pay royalties for stuff that they did. Which, in this case, Netflix thought they could get out of.
It should be different. The more abstract it gets, the less patentable it should be. Algorithms are more abstract than machines.
Even just translating what you said into something that makes sense legally (or is at all coherent from that point of view), has enough urgency that politicians might act on it, and actually stands a chance of getting enough backing to turn into law, is a process that takes a lot of skill, determination, and time.
Legal logic that explains it should be worked out if for some reasons it still isn't.
Actually it does. Your assertions lack a legal basis, i.e. validity. Something being more abstract than something else is not a legal concept. It might matter to you but you'd get laughed out of a court room. Algorithms have been patented for decades. That's the legal reality.
> Legal logic that explains it should be worked out if for some reasons it still isn't.
The legal side of this is brutally simple: decades/centuries of existing patents, their interpretations, and any law suits around those. Which of course involves lots of legal bickering for the last decades by big software companies and their inventions arguing every comma, semantics of the words, and generally picking any nit that looks like might be worth picking (lawyers are amazingly good at that), etc. Legal logic dictates that unless the law changes, any new interpretations need to be consistent with all of that previous work. And changing laws and upholding them is a tricky business. Especially when they are being inconsistent with previous laws. Something like that requires a broad consensus. Which of course does not exist.
The gist is a computer program must produce a "further technical effect". It can't be just running code on a generic computer.
It would have to be specific to the internals of the computer, like a method of securing a bootloader. There's a section with more examples: https://www.epo.org/en/legal/guidelines-epc/2023/g_ii_3_6_1....
I imagine it can lead to more questions than answers. It's complicated.
So math is… patentable?
I have a patent which involves a formulaic approach to measuring and classifying certain “stuff” It is filed as data compression and being able to represent the same thing in a compressed way is why it can be protected.