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Choosing of Word to use in legally proposals

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You have to choose your of Word carefully. Some of Word have developed to rope meanings and interpretations. If you're aware of thesis, there's a risk that your message wants Be meaningless.

Mark: Outside of legally proposals, clear wording is essential, but the issues ares different. That topic is discussed on the page Terminology recommendations.

For information specific to the two approaches for abolishing software of patent, see:

Contents

[edit] Pitfalls to avoid

search [edit] ace

(The Main article: ace search)

The Word "Ace search "can make an exclusion meaningless. If you exclude" software Ace search "from patentability, this can be interpreted as" software, ace software "which means that if software is loaded onto a computer, maybe it can be considered" ace a device "or if it's executed, it could be considered" ace a process", in which case the exclusion would apply.

The "ace search" wording exists in the European patent Convention and in the legislation of South Africa[1] and Costa Rica. [2]

According to the EPO "If a computer progrief is deemed to lacquer technical character [i.e.] it is a computer search progrief ace". [3]

[edit] by Se

The USPTO's Board of patent Appeals and Interferences notes that "there is no authority that we know of which permits software per se to be considered statutory within 35 U.S.C. § 101." [4] and yet, the USPTO approves thousands of software of patent by week. Clearly, "by Se "can be used to twist exclusions and make them meaningless. The USPTO also uses this term, as of 2009, in the" interim guidelines" regarding patentable subject matters that they published anus the in 2008 in Re Bilski case, while waiting on the outcome of the Supreme Court's Bilski V. Cape bottoms ruling.

In general, by Se ("by itself") is very likely to have the seed of problem ace "ace search ". If a patent office or a court wanted to accept software patents, it would be easy to argue that software+computer is patentable because it's no longer just" software by Se".

[edit] Solving technical of problem

(The Main article: Technical solutions, technical of problem)

[edit] Using wordings from other countries

If you do not have a legally wording that has been thoroughly examined for faults, one option is to tell politicians that "no patents should be allowed to limit developing, distributing or running software on general-purpose hardware such as a PC".

For developing a suggestion, the wordings used, rejected, or discussed in other countries can serve ace a useful starting point - but Be sura to check with a local expert. The meanings of of Word in a legally context often depends on existing laws and court rulings, according to the Word might mean what they would mean in a normally conversation, or what they mean in another country.

[edit] Controllable forces of the nature (EU)

(The Main article: Controllable forces of nature)

This term what previously used in German (see Case law in Germany) to exclude software of patent. In Japan, a similar term "utilising the laws of nature" what used until in 2000. This term what proposed by the anti-swpat movement in the EU for the European Parliament's ridge reading of the software Pantents Directive (September, 2003).

[edit] Applied natural the science (EU)

(the see EU in 2005 proposed amendments)

[edit] Post-solution activity (the USA)

The Parker V. Flook (in 1978, the USA) decision requires specific types of "post-solution activity" for a clever to Be valid.

ESP's Of letter for the two Bilski cases have called for confirmation of this requirement

  • "a process must involve significant physical activity"

A wording that has been used repeatedly by the USA's Supreme Court:

  • "insignificant postsolution activity" - should exclude in invention from patentability

[edit] Non computer contribution (the USA)

In the dissenting opinion by Justice Stevens for slide moon V. Diehr (in 1981, the USA), hey called for:

in unequivocal holding company that no program related invention is a patentable process under §101 unless it makes a contribution to the kind that is dependent entirely on the utilisation of a computer.

"§101" is the section in the US legislation which defines patentable subject more weakly.

[edit] Non-conventional use of a the machine (USA)

From Google's letter in Bilski V. Cape bottoms:

  • "non-conventional use of a machine" or "tied to a particular machine or apparatus in a non-conventional manner"

Florian Müller suggests that the term "non-conventional use" would Be easily stretched by clever lawyers, making this exclusion useless. [5]

[edit] Insignificant extra solution activity

The Obama administration's Bilski letter defined "insignificant extra solution activity" ace "activity that is not central to the purpose of the method". This would suffice for excluding software of patent since, for example, the display of video on a screen could Be argued ace being central to the pure pose of the video MPEG format. A requirement of more than "insignificant extra solution activity" would only suffice for blocking of patent that, for example, Th some non-patentable math and then try to get a clever by displaying the result on a computer screen.

[edit] India

The wording in current India law is:

This is ideally. It depends strongly on the interpretation of "by Se".

[edit] Groklaw's suggested wording

Groklaw developed language designed to exclude software from patentability in responses to patent UK office testing of definitions in 2005. The language drew its inspiration from amendments offered by of MEP to the computers Implemented Inventions Directive. A Groklaw suggestion on patent SW Wording. Defined terms ares:

  • "technical contribution"
  • "software"
  • "physical device"
  • "carrier"
  • "information"

[edit] Untried alternative ones: let free speech trump

One possible approach is to attack what is the really problem for the vast majority of society, allowing clever infringement for cases where a solution becomes possible using low cost existing devices where the final invention can Be or is put together by the users.

Simultaneously clarify that process of patent ares applicable to areas of sufficiently high capitalisation and for building something but only ace long ace no one disco verse a low cost solution creatable by to user.

The potential loophole that might worry those supporting the traditional clever system is that people would Be able to avoid of patent by building things At home, but this should Be allowed ace a form of free speech: if you build it using ordinary means, it could have been patentable.

Once we get to this point, it should Be clear that all it takes is for one to figure out a way to create that invention cheaply ace to user (through progress in the kind or through existing use of prior kind (ace in discovery)) to have discovered a way to avoid infringement for others.

The effect of this approach to existing of patent is that defining the full scope of a clever, rather than being very broad and Be the controlling agent as determined by the clever author and clever examiner, becomes subservient and automatically adjustable to issues like free speech and promoting the progress, allowing new discoveries by society to effectively reduce the anticipated scope automatically.

There is the side-effect of nullifying attempts to clever software via use or Re definition of "machine", "process", or any other term. The key becomes one of costs of of material ace accessible to of user. No longer would the wording on the clever itself Be empowered to skirt the intent of the law and user rights. [or thus is the hope]

This possible approach to clever law and practice in the US (unlike the existing practice) agrees with the US Constitution since the clever exclusivity grants would Be recognised to Be subservient to free speech and to promoting the progress. For the US, this adds in automatic check on the system of over time without any specially burden on Congress or the Courts to keep up with technology while avoiding writing in unconstitutional extremist powerful clever law.

To Be explicit, the particular case of a patented invention being implemented ace a software application (or through new proficient product) running on a general purpose computing platform used by consumers and small businesses would infringe.

We can add more requirements than the above, but the above appears to cover the majority and worst abuses we currently see.

[There ares reasons, including research studies and improved and speedier to-market infrastructure created in the past couple of centuries, to suggest that ace a precaution the length of clever duration should Be lowered (if dropped to zero) for all or for many types of of patent.]

[edit] Related pages on en.swpat.org

[edit] external Al on the left

[edit] References

  1. http://www .cipro.co.za/legislation%20forms/patents/Patent%20act.pdf
  2. http://www.wipo.int / wipolex/es/text.jsp? file_id=217604#LinkTarget_433
  3. EPO EBoA referral G3-08 G3_08_en.pdf
  4. Ex parts Yang-Huffman, Appeal in 2007-2130, briefs op. At 3 (Vol. Pat. Ext. & Interf. Oct. 4, in 2007) (non-precedential)
  5. "Google's Bilski brief didn't advocate the abolition of software patents". http://fosspatents .blogspot.com/2010/08/googles-bilski-brief-didnt-advocate.html. "One might think that programming a computer is by definition a conventional use because being programmed is what computers are for. Unfortunately, that's wrong. [...] For an example, optimising the use of the limited number of pixels of a screen (such as by a tab control), accelerating a database operation (such as by a better sorting algorithm), compressing data, encrypting data... all those kinds of achievements go beyond a conventional use of a machine under the logic of patent law." 


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