German Parliament says: Stop Granting Software Patents
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It seems to me that what we need is not immunity from granting patents on software, but immunity from enforcing patents against software. I propose a very simple test: if a system with its software erased would not infringe the patent, then the system should be considered not to infringe the patent. Thus, arrangements of machine parts, formulations of coatings, and non-programmable circuits would be subject to patent litigation; but entire machines that wouldn't function at all without software would not be.
If we're not going to enforce a patent against software, why grant it in the first place?
Then what's the point of the European Patent Convention?
The above link gives details over the approach taken by the EPO, giving examples of pure software patents which were rejected whilst also illustrating the approach taken to granted patents in the area.
My understanding is that software in its own right cannot be patented but where software is incorporated into a specific product to provide functionality it can be patented.
/edit The following link also provides good information. Essentially, the barrier is very low to establishing that a software patent achieves a technical measure and falls outside the exception. For example in HTC v Apple, a lower court judge found a multi-touch related patent invalid as a computer programme, however a higher court overturned this ruling.
http://ipkitten.blogspot.co.uk/2013/05/from-alice-to-apple-p...
Actually it is more like when a process like the one that can usually be patented contains software, then the software part can be included in the patent covering the whole process.
The key part of Art. 52 §3 creating exemptions from §2 is "as such" [0].
Say you invent a robot able to weld faster and more precisely. You can request a patent covering the robot and, being a fundamental part of it, the control logic implemented in software. Yet you can not try and patent the control logic by itself, nor sue anyone using the exact same control logic anywhere else, including in robots (as long as they themselves don't infringe on the patent). Conversely, someone using the same robot design but a different software algorithm may not be infringing the original patent. This protects both the innovator from being flat out ripped of and everyone's right to use algorithms and mathematics freely, while incremental innovations are allowed either in software or in hardware.
[0] http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/...
"Software as such" used to be excluded because inventions were required to be technical, which meant that a patent had to teach a methodical use of controllable forces of nature that attained a goal based on cause and effect. The criterion of "being technical" predated "software as such", but the latter term was indeed intended to distinguish between pure software and combined software/hardware solutions, where the software was integral to the overall solution, reflecting previous exclusions of business methods, mathematics, etc. under the same criterion.
What happened was that the "use of controllable forces of nature" got watered down incrementally until now practically anything that isn't defined in terms of a Turing Machine satisfies the criterion (sadly, I'm not really exaggerating much here). For example, anything that is designed to operate in finite (not even practically limited, just not infinite) memory can be argued to be related to managing resources and thus be technical. Any algorithm that is more efficient than another (uses less memory, is more cache-friendly, requires less I/O, etc.) is potentially technical.
As a result, tying your algorithm to a device as an integral part of a combined hardware/software system is not really a necessity any longer. That does not mean that anything goes, but there are way too many patents relating to what developers (but not the EPO) think of as pure software solutions that are patented and which can trip you up.
This is precisely what the German parliament is referring to when it complains that "in practice -- in particular by the European Patent Office (EPO) -- patents were granted for computer programs where the patent grant for teachings relating to pure data processing received only a formal disguise as a 'technical process' or 'technical device' and claims explicitly included also the computer programs implementing these processes or devices".
[Correction 2013-04-24: Parliament did not yet adopt the motion, but rather decided to pass it to the parliament committees for further consideration.]
If they want to use the patent in a suit for the first time, then trigger a much more rigorous process to test its validity.
It is still a big story, because it is a motion supported by all parties in the German parliament except the "Linke" (who don't like software patents, either). That would at the very least indicate that German interests seem to be pretty strongly aligned against software patents.
There are some very large web sites I could deliver as a single page app (looks cool, loads faster, etc.) but that's like having a "cloak of invisibility" so far as Google is concerned.
Users were not happy.