EU SOFTWARE SLEEPWALKING-FEST CONTINUES: Michel Rocard, economist and former French prime minister, has just published a report on the European Software Patents Directive. He also happens to be the European Parliament's draftsperson or "rapporteur" on the directive.
Predictably, many of the points made in the report are re-hashes of the "technical contribution" canard, and the proposals put forth are the same ones that were previously presented in attempts to neuter any meaningful protection software patents would provide. As Greg Aharonian said in his latest Patnews: "It is becoming a boring game watching European politicians abuse science and language to deny to any degree the patenting of software."
Software, formulating an idea, is by nature immaterial. The work that it triggers off inside the computer is internal to the computer and not directly communicable to anyone or anything. For that work to be communicable and have an effect, a part must start to move, an electrical, radio or light signal must be produced, data must appear on a screen, or some physical effect must be unleashed. What is evidently patentable are, firstly, the sensors and, secondly, the effectors that supply the computer with data processable by the software and that obtain from the dataAgain, what this really means is anyone's guess. In one of the rare responses criticizing (abeit mildly) this type of thought, the EICTA pointed out that any definition or test based on “controllable forces of nature” or “physical forces” would exclude patents for intangible inventions, e.g. speech coding, communication protocols, radio signal handling, error correction, data compression etc., all of which are currently patentable and traditionally have been patentable for decades.
ultimately produced by the software in its language a physical effect constituting the
technical solution to the technical problem posed. The distinction that we are after thus separates the immaterial world from the material, or rather, from the physical
But each of these two words is somewhat inadequate to cover the whole area required. ‘Material’ refers too much to matter and not to energy, while
‘physical’ implicitly suggests a palpable quality.
Your rapporteur’s preference is rather for the following wording, which would find its place in Article 2 of the directive setting out the definitions:
‘Technical field’ means an industrial field of application requiring the use of controllable forces of nature to obtain predictable results in the physical world.
If we agree that even a simple electrical, radio or light signal is composed of energy, this wording covers every possible way of sensing the immaterial data produced by the computer while the software is running to produce an effect perceptible and usable by a machine or human being.