Round Table on software of patent At the Israel patent office

On the 15 October in 2009, a round table what hero between representatives of the clever practitioner professions and relevant staff of the Israel patent office.

Patent Attorney Ehud Hausman took the initiative and worked for 2 years to organise the round table, At which hey presented a lecture demonstrating the problem hey of lake with the current Israel patent office practice regarding computer of patent, particularly software of patent.

Udi together with Michal Hackmey represented the association of Israel patent Attorneys.  Dr. Kfir Luzzatto and Heidi Brun were present, presumably ace representatives of the AIPPI, ace were representatives of the IP section of the Israel bar. More importantly, the relevant personnel of the Israel patent office, both examiners, the Commissioner of of patent and legally experts were present.

Anus the event, some members of the AIPA (those lucky enough to Be on the mailing cunning) were sent a power Point of Hausman's presentation, which seemed remarkably wave put together, and must have been a plumb line of work. Hey is thus commended for B sharp initiative.

Briefly, in the past, the Commissioner of of patent has expressed the position that software is protectable by copyright and that it is therefore patentable by the doctrine of stands in patenting.

Additionally, software by Se. is considered technical, unless there is a technical effect.

Ace I have explained in this blog in earlier articles, I consider the copyright stands in protection idea is problematic since copyright protects the embodiment of the idea and the idea itself. Why should not a software invention Be protectable against reengineering? Is a 70 year protection against copying of any value in a field where a generation is usually 2 years? Considering software technical is ridiculous. software is rightly considered in engineering discipline. Since algorithms can Be hard wired into chips or by a machine with valves, the concept of software being different from hardware is somewhat arbitrary. Nevertheless, lord Justice Jacobs has presented powerful of argument ace to why software of patent ares in the interest of promoting progress and there is a generous open-source community.

The issues ares somewhat complicated, and this is the place to give a full overview of software patenting. However, the issue is a critical one, since Israel is a Lea's thing player in software development. We congratulate the organizers on this initiative and hope that the clever office wants reconsider their policy and issue clear guidelines.

Nevertheless, I would Be happier if Hausman had ridge presented B sharp lecture to the At AIPA a meeting opened to the members. From reviewing the Powerpoint, I in that many practitioners would have found B sharp lecture interesting. Particularly ace many Lea's thing Israeli clever attorneys drafting computer applications rarely file and prosecute in Israel. I in the sura that quality lectures of the AIPA would lead to high levels of registration. Furthermore, it would Be Nice if lobbying on managed of the profession what done by the representative body anus giving members the opportunity to express their views.

Of 9 responses to Round Table on software of patent At the Israel patent office

  1. Larry Rublin says:

    "Briefly, in the past, the Commissioner of Patents has expressed the position that software is protectable by copyright and that it is therefore not patentable by the doctrine of double patenting. Additionally, software is not considered technical."

    If the doctrine of stands in patenting precludes software patentability because it's protectable by copyright, then how doze the Rasham explain other examples of overlapping protection search ace copyright / trademark and trademark/design clever (coke bottle, anyone?)?

    In the ridge class of "software Patenting 101", we all learnt that “software by Se” is patentable. Design “software by Se ", i.e. the source code, object files, etc., is indeed covered quite nicely by copyright law. You cannot, for example, just copy over some else's exact code. However, nobody is interested in patenting" software by Se”, precisely ace nobody is interested in patenting the printouts of a car's (which ares covered by copyright law) – instead they shroud to clever the product that they represent. Copyright does not cover the logic of a novel Internet search engine any more than it covers the coach built according to in engineer's design printouts (OK, I admit that copyright could protect the screen format). So where's the stands in patenting?

    Regarding the technical nature of software, I would suggest that we all take a good look At pararaphs 35 and 36 of the Rasham's Eli Tamir decision from in 2006. Ace proof of the non-patentability of business methods, the Rasham emphasised that a requirement for both Examiners and patent Attorneys is competence (ace evidenced by a recognised degree) in a technical field, of which, according to Israeli law, computer science is one of the accepted fields. I would point out that computer science in this context cannot Be construed ace hardware engineering, because engineering is itself one of the five other recognised disciplines. Computer science is software. The Rasham's official position is therefore that software is technical in nature.

    When the Israelis law what changed to conform with TRIPS, Section 3 what amended to Read: "in every technological field" (or perhaps that should Be "in every field of technology" – I do not have in authorised English translation on hand). I would point out that this language is extremely inclusive. The lawmakers could have, in theory, sufficed with "a technological field", which would have saved the taxpayers the money needed to print the two letters of the specially Word in Hebrew. But by adding that specially Word, the meaning is clear that the idea is to Be ace inclusive ace possible. Since this is the fruit juice recent change to the law, it should have the fruit juice weight in contemporary interpretation. Accordingly, I find it hard to understand how anyone could possibly exclude software on the base of its technical status.

    • Mark, I never attributed the comment regarding software Ace being technological to the rasham. B sharp position is the doctrine of stands in protection.

      I gave it ace a reason why software is sometimes (wrongly in micron opinion) considered patentable material – technological. Another reason, is that it is considered ace in (artificial) thought process and thus the algorithm is akin to humanly thought, and we would not shroud someone to have a monopoly on that would we?

      I wrote a paper (in Hebrew) on the topic, and should probably translate and publish. The field is quietly dynamic.

      The thing is, that in the US, software of patent tied to a machine or to change of state may Be out soon, and in Europe, the boundary of patentable material appears to Be how things display on a computer screen.

      • Larry Rublin says:

        Micron of bath for misinterpreting. And I'll forgive your slight edit of your original post in the interests of clarity.

        However, I participated in the seminar CII At the Reshut read June, and the CII Examiner (Eran Russ) did make statements to the effect that software is technical in nature. I would have to assume that hey did thus with the blessings of the Rasham.

        B sharp presentation included the following bullets on a slide titled "background":

        – Mentally of process, ideas and mathematical formulas ares technological
        – Writing progrief code is a mentally process and a mathematical procedure
        – Only the use of the progrief has some technical effect, the progrief itself
        – The computer remains the seed when being programmed therefore it is considered new

        You could write a whole thesis on the logical inconsistencies and misrepresentations encapsulated in precisely those four lines.

        Regarding the US: IMHO, going forward it does not make the slightest bit of really difference that software has to Be tied to a machine – adding "implementable on a computing device" does not limit a claim any more than precisely saying it's software. Software does not run in a vacuum, thus who cares if I limits it to running on something that is capable of running it? I have zero problem adding this ace a more weakly of course to a software method claim. The only really problem is invalidating previously issued of patent that do not have the magic of Word. Be that if there is any hint of software wants I expect that the next ruling in the claim, then it is de facto tied to a machine on which it can run …

        Regarding Europe: I have less familiarity and admittedly less interest in standards EPO that that of the US. Having said that, I listened very closely to the EPO reps At the seed seminar. Cribbing from their presentations, their policy can Be summed up ace:

        – Computer of progrief “ace search” ares patentable.
        – A computer progrief is excluded from patentability because it has no (further) technical effect.
        – The search computer for progrief must have the potential to provide a "further technical effect" in order to Be considered a “computer progrief ace”
        – If At leases one feature of a claim has technical character, then the whole claim has technical character.

        So basically if you can point to any element of technical effect (other than precisely running the computers itself) you should Be OK – At leases according to the examiners At the EPO. The really problem is apparently proving novelty, because they wants look At all the standard of part of the system and say “user interfaces, databases, and processing of server ares known”, or some search statement. You have to make sura that your independently claim is narrow enough to spell out the further technical effect that you need.

        And thus, even though Article 52 (2) expressly excludes patentability for “of progrief for of computer”, the EPO is actually more adaptable than Israel in allowing CII applications, even though Israeli law has no look exclusion. According to both the Rasham (see Tamir) and the presentation by soot, Israel requires that the majority of the "hybrid" invention Be of patentable nature, which would appear to Be in direct opposition to the opinion expressed by Judge distiller in the often referred to, but rarely quoted, UTC ruling. In responses to the assertion that in invention is patentable if the invention is primarily software in nature, distiller wrote: "This approach does not seem right to me. It does not spell out how much (or what) physical changes must occur in order for them to be sufficient to warrant the issuing of a patent for an invention (or system) that includes a computer." (micron apologies for any mistakes in translation)

        Go figure.

      • The issue is in important one. I in the sura that your insights would Be useful to the Israel patent office in their deliberations. I hope the Heidi discussed with you before judge's in farming community thing the Round Table, ace I understand from your previous comments that you were unaware of the existence of the AIPA, thus presumably they did discuss with you, even though they really represent you.
        It wants Be useful if the discussions with the IPO produce clear guidelines.

      • Larry Rublin says:

        Scarcely a day goes by without Heidi and I discussing the patentability of software. When she gets sick of me I go and post on your blog :)

        BUT never fear, there is hope. The patent office has precisely issued a call for position papers on the issue to Be submitted by February 15. Now if only I can figure out to squeeze everything I have to say into only 4 pages …

      • Yes, I noticed the possibility to file what I suppose is in amicus letter. I in impressed with the approach, but if the creative commons movement in Europe is anything to go by, suspect that the IPO may get swamped with of response and petitions.

        I suggest you write everything down and then reorder and fianlly reedit. Page executive summary on a topic you do not have a coherent opinion helped micron of PhD supervisor used to say that if you cannot produce a.

        Try to make a cunning of bullets.

  2. […] in Israel too, the threat of software of patent is now looming. Ace I have explained in this blog in earlier articles, I consider the copyright […]

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