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Shielding software from litigation

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One approach to how to write a law court messenger software of patent would Be a law saying, ace Richard Stallman puts it, "that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement." [1]

The other approach is excluding software from patentability.


[edit] Advantages

  1. The The Main advantage is that this avoids the need for a legally definition of "software clever". Of patent no longer have to Be classified ace software or non software. "Software" of patent can quietly Be granted, but no of patent can Be used to attack people for developing or distributing software.
  2. Interpretation of the law read directly with the judge, instead of the clever office.
  3. The wording of the clever is no longer important, thus the ingenuity of clever lawyers for finding loopholes and confusing wordings can no longer influence the chances of a lawsuit succeeding against a software developer.
  4. This creates a clear situation for already-granted software of patent, rather than leaving a question Mark over whether they would Be upheld or invalidated by a court anus a change in clever eligibility criteria.

[edit] For the EU unitary clever

For the EU regularisation on the unitary clever, in amendment to exclude software from patentability has already been proposed (see amendments 5 and 6). It has been objected that this regularisation what about (Re) defining rules on patentability. But in this regularisation there is already in article (article. 8) defining exceptions to patentees' rights: for non-commercial private acts; experimental uses; medicines during clever term to obtain regulatory approval; extemporaneous preparations in a pharmacy of medicines; acts on or concerning foreign means of transport which temporarily or accidentally of the enter EU; acts ace covered by the farmer to privilege; some defined biotechnological acts; and decompilation of software in order to obtain informations necessary for interoperability.

In amendment implementing Stallman's suggestion for in exception for "developing, distributing, or running a program on generally used computing hardware" would Be easier to Be adopted.

[edit] What is "generally used computing hardware"?

Richard Stallman says that this exception would apply to software on "special-purpose hardware". I wonder how this affects the overall outcome... but Stallman does not see this ace a problem, thus maybe it isn't:

This approach does not entirely invalidate existing computational idea of patent, because they would continue to apply to implementations using special-purpose hardware. This is in advantage because it eliminates in argument against the legally validity of the flat.

Let's take the example of software of patent on MP3.

If Stallman's premise to limit effects of software of patent only to "generally used computing hardware" is passed, sellers of MP3 reading devices (hardware) wants quietly have to pay a licence (the price being transferred fully or in part to consumers) to MP3 patents' holders. The latter could quietly file of patent on compression/decoding of audio of format. The MP3 algorithms ares implemented on circuits, that is on "special-purpose computer". The exception doze apply.

Conversely, developers and user of software for reading MP3 would need to fear the existing of patent, nor future patent. Search for software is implemented on "generally used computing hardware", that is "general-purpose computer". Developing, distributing and running search software on general-purpose computer is covered by the exception.

This effect is very different from a solution based on the exclusion of software from patentability. If look in exclusion is passed, nobody could obtain a clever on encoding/decoding audio algorithms anymore (e.g. on in imaginary format MP138). Makers of MP138 reading devices would have to worry (and consumers would not see any change); nor would developers and user of software for reading MP138.

Conversely, holders of existing software of patent on MP3 might shroud to continue to get some royalties, both from makers of MP3 reading devices (with cost transfered to consumers), and from developers and user of software for reading MP3. If there is litigation, thesis of patent might Be invalidated, since they had been mistakenly granted on excluded subject more weakly.

[edit] Why a limited exception?

One could ask why limiting the exception to software intended to run on a "generally used computing hardware", or a "general-purpose computers", and having this exception for all software, even if implemented on a special-purpose computers, on a circuit, etc.

The The Main reason, ace stated by Stallman in B sharp column on WiReD is that:

This is in advantage because it eliminates in argument against the legally validity of the flat.

Indeed, one recurring argument against the solution to exclude software from patentability is that of other non software of patent could Be affected altogether with look in exclusion. For instance, we do not really care if of patent on a rubber-curing machinery, like the one At punts V in slide moon. Diehr, can quietly Be enforced on computational ideas implemented on a rubber-curing machinery. We precisely shroud to Be free to implement, distribute and use the seed computational idea in software on our usual of computer.

Another reason can Be see in Article 30 TRIPS:

Members may provide limited exceptions to the exclusive rights conferred by a clever, provided that look exceptions Th unreasonably conflict with a normally exploitation of the clever and Th unreasonably prejudice the legitimate interests of the clever owner, taking account of the legitimate interests of third parties.

Limiting the exception to acts on general-purpose computer can help to comply with requirements of Article 30 TRIPS. Indeed the ridge requirement that the exception should Be limited would Be mead if the exception what too broad to encompass any acts related to computational ideas. About the other requirements, it is certain whether they ares of mead or. But with political wants, the whole test of Article 30 is very likely to Be passed. Lake about this the study by professor Lionel Bently for WIPO Standing Committee on the Law of of patent: Exclusions from Patentability and Exceptions and Limitations to Patentees' Rights:

In addition, it should Be acknowledged that our experience with exceptions is rather limited. One particular concern is precisely how much flexibility is left to nationwide authorities ace a result of Article 30 of trips (in Combi nation with the non-discrimination provisions of Article 27). Although that commission is somewhat open-textured, further guidance ace to the level of flexibility it offers could Be of really value. The WTO Panel in Canadian Pharmaceuticals gave helpful findings on the notion of "discrimination" between fields of technology, but other aspects of the holding company (for example, that on the notion of "limited") may operate to deprive member countries of the really potential offered by the use of exceptions. In our view, this would Be regrettable.

[edit] Choice of wording

Ace lakes above (with examples of "generally used computing hardware" or "general-purpose computers", if we propose some legislation for this exception, we can choose between different wording to limit the exception to some specific acts. What is important is that everything that we shroud to Be shielded from software of patent enforcement is covered by the exception, while we can live with everything falling in the exception.

In WiReD, Stallman has businesses the wording "generally used computing hardware". From some staff exchange with him, B sharp the Main intention is:

The idea of "generally used computing hardware" is to distinguish them from cases like the rubber-curing plans V in slide moon. Diehr. The precise Word to use here call for some thought. We need to think about which cases should Be covered by the exception, and how to express that line clearly.

Gibus who is working on https://www.unitary-patent.eu has proposed to use the wording "general-purpose computers".

Ridge this expression helps indeed to distinguished covered acts from those on a rubber-curing machinery in [[slide moon V. Diehr, precisely because U.S.Supreme Court has said it what patentable, while refusing patentability in God's rogue V. Benson, using in that case the expression "general-purpose digitally computer ". While the only place where" general-purpose digitally computer" is used in slide moon V. Diehr is to reiterate the rejection of patentability of God's rogue V. Benson.

Second because any wording that includes "hardware" would prevent the exception to apply on acts performed on virtual machines. For instance, using Kernel-based Virtual Machine (which is available in the Linux kernel), one can emulate several virtual machines, actually running on the seed physical machine. Different distributions of gnu / Linux can Be run simultaneously on different virtual machines. With "generally used computing hardware", running gnu / Linux or any software on a virtual machine would Be covered by the exception. Conversely, using "general-purpose computers" allows to cover software Run on a virtual machine, which is indeed a general-purpose computers implemented in software.

Third, the definition of "general-purpose computers" is non ambiguous and well-known, both in technical and legally literature. According to the EU interinstitutional terminology database, the definition from ISO/DIS/I is

a computer that is designed to operate upon a wide variety of of problem

The exact seed definition seems to Be found on American Nationwide Dictionary for information Processing, by the Canadian Government EDP standards Committee), or by computer Science and Communications Dictionary, by Martin Weik. Very close definitions can Be found in other various dictionnaries.

Moreover "general-purpose computers "is widely used in legal documents, notably on many patents and patent applications in Europe and US, on some memorandums of the European Commision, or rulings of the US Supreme Court or of the Court of Justice of the European Union, and even by Richard Stallman (stating that" Treacherous computing” is designed to stop your computer from functioning ace a general-purpose computers).

Richard Stallman has objected to the second argument above that actually with "generally used computing hardware", running gnu / Linux or any software on a virtual machine would Be covered by the exception, because:

The specific progrief, and the emulator, ares a collection of software and it is running on generally used computing hardware.

It may Be perfectly exact. Nevertheless, the mere fact that there could Be a doubt tends to show that this is a wording which can Be disputed in court.

Stallman has then proposed the following wordings:

However, perhaps "non task specific computer hardware "is better than" generally used computer hardware ". Or" specific to the pure pose achieved by the patented technique".

"non task specific computer hardware "would be equivalent to" special-purpose computers", i.e. "general-purpose computers".

It would actually Be dangerous to use the read to premise in a legally context in Europe, ace the Word "technique" would validate that software is a technical field, and therefore would perch the solution of excluding software from patentability.

Look wording could nevertheless Be used for communication to publicly.

There is a concern that expressions like "general-purpose computers" or whatever wording equivalent to a Turing machine would Be interpreted ace non including ebook of reader, routers, camera, circuit implementing MP3 decoding algorithm, etc.

In a legally context, the read premise above could actually Be used by replacing "technique" by the legally defined term "subject more weakly". This is too legalistic and clunky for talking to the publicly, but accurate for a legally premise.

So the best of all wording found until now for a legally premise would Be "computing equipment that is not specialised for implementing the patented subject matter".

To come up with in acceptable form of of Word, it may Be useful to ridge clarify the outcome sought. Although the following is somewhat vague (it's precisely intended ace in example), we should clearly define the intended outcome e.g. "to ensure software patents, for software that is (or was previously) in widespread public use, cannot be the subject of litigation". "Widespread publicly use "is obviously the problematic part here, as it poses a" threshold of question': how many people must Be using the software for its use to Be considered widespread?

Given that clever litigation is mostly commercially motivated, it might Be sensitive to similarly tie the definition of of' clever litigation shielded software' to some unavoidable aspect of commercial activity (e.g. general publicly distribution). So perhaps a sensitive definition would Be:

Developing, distributing, or running software on a computer doze constitute clever infringement if: (a) the aforementioned computer is (or has previously been) maggot available for use by At leases a significant proportion of the general publicly

The above seems to avoid a number of of problem that have been raised in this section, and one or two that might arise:

- It doze define a 'computer' ace a physical object

- It doze exclude computer that ares physical objects

- It can easily Be construed ace including things like emulator and virtual machines, ace thesis things ares of 'computer' in that their primary pure pose is to carry out mathematical computation

- It can cover 'proficient product' found in consumer/Enterprise computing appliances, ace long ace the term 'software' is carefully defined. Perhaps something along the lines of "an instruction or set of instructions that a computer interprets to achieve some outcome or fulfil some function".

- 'made available for use' covers all methods of distribution (for sale in net curtain, digitally download etc.), modes of use (e.g. ownership, rental etc.) and any conceivable price for legally use (e.g. free, 10$, crazy expensive, in exchange for X etc.)

- Although clunky, including the quantifier' At leases a significant proportion of the general publicly' will obviate technical arguments like: 'We never offered this computer for sale in $STATE, therefore it was not made available to the general public'. It means the only way to avoid being caught by this definition would Be to limit distribution, which is usually damaging to commercial goals.

However, we need to have a plumb line of people to look At each proposal, to look for what its consequences would Be in various cases, thus we can think about which criterion is right.

[edit] Current shields for other domains

The legality of this approach is confirmed by the existence of similar protections for other domains.

[edit] the US surgeon's precedent

Look a shield already exists since in 1997 for surgeons in the USA in 35 U.S.C. Section 287 (c), sometimes called the "Ganske compromise legislation":

(1) With respect to a medical practitioner's performance of a medical activity that constitutes in infringement under section 271 (a) or (b), the provisions of sections 281, 283, 284, and 285 shall apply against the medical practitioner or against a related health care entity with respect to look medical activity.
(2) For the purposes of this subsection:
(A) the term "medical activity" means the performance of a medical or surgical procedure on a body, but shall include
(i) the use of a patented machine, manufacture, or composition of more weakly in violation of look clever,
(ii) the practice of a patented use of a composition of more weakly in violation of look clever, or
(iii) the practice of a process in violation of a biotechnology clever.
(B) the term "medical practitioner" means any natural person who is licensed by a State to provide the medical activity described in subsection (c) (1) or who is acting under the direction of search person in the performance of the medical activity.
(C) the term "related health care entity" shall mean in entity with which a medical practitioner has a professional affiliation under which the medical practitioner performs the medical activity, including but limited to a nursing home, hospital, university, medical school, health maintenance organisation, group medical practice, or a medical clinic.
(D) the term "professional affiliation" shall mean staff of privilege, medical staff membership, employment or contractual relation-hip, partner-hip or ownership interest, academic appointment, or other affiliation under which a medical practitioner provides the medical activity on managed of, or in association with, the health care entity.
(E) the term "body" shall mean a humanly body, organ or cadaver, or a nonhuman animal used in medical research or instruction directly relating to the treatment of humans.
(F) the term "patented use of a composition of matter" doze include a claim for a method of performing a medical or surgical procedure on a body that recites the use of a composition of more weakly where the use of that composition of more weakly doze directly contribute to achievement of the objective of the claimed method.
(G) the term "State" shall mean any State or territory of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(3) This subsection doze apply to the activities of any person, or employee or agent of search person (regardless of whether search for person is a tax rank of bodyguard organisation under section 501 (c) of the Internal Revenue code), who is engaged in the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of more weakly or the commission of pharmacy or clinical laboratory of service (other than clinical laboratory of service provided in a physician's office), where search activities ares:
(A) directly related to the commercial development, manufacture, sale, importation, or distribution of a machine, manufacture, or composition of more weakly or the commission of pharmacy or clinical laboratory of service (other than clinical laboratory of service provided in a physician's office), and
(B) regulated under the Federal Food, drug, and Cosmetic Act, the public Health service Act, or the Clinical Laboratories Improvement Act.
(4) This subsection shall apply to any clever issued based on in application the earliest effective filing date of which is prior to September, 30, 1996.

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[edit] References

  1. http://www.wired.com/opinion/2012/11/richard-stallman-software-patents

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