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Re: libdts patent issue?

Nathanael Nerode wrote:
> Arnoud Engelfriet wrote:
> >Then the formula remains 
> >public domain; you just can't make, use or sell a program that
> >implements the formula. Were the formula patented, then you couldn't
> >even publish a textbook.
> Unfortunately, that's a distinction without a difference.  If you're 
> prohibited from making a computer program implementing the algorithm, you're 
> prohibited from writing a formal description of the algorithm, which is a 
> standard textbook technique.  (A computer program *is* a formal description 
> of an algorithm.)  If you're prohibited from selling such a program, you're 
> prohibited from selling such a textbook.

No, you're not. The textbook is not the same thing as a computer
program in machine-readable form. This is the same as with those
crypto algorithms that can't (couldn't) be exported as .c files
but could be exported as printed pages. 

> The use prohibition is at least different: if only the use prohibition were 
> present, you could indeed publish a textbook, but nobody would be allowed to 
> use its techniques without a license.

That's basically how patent law works in every area. You can
publish the knowledge but not apply the knowledge to make, use
or sell a working device or actual product. And a book that
humans can read is not a product in patent law.

> According to this "distinction", we could distribute Debian
> as a "computing textbook" rather than as a "system", and we would then be 
> exempt from these patent considerations.

I think it actually has to _be_ a textbook before you can call
it a textbook. 

> (The current US rule is that that every such patent is for a "program plus a 
> generic computer", so this should actually work.  

Right, although there's lots of legal concepts like contributory
or vicarious infringement that could come into play. But I don't
see how distributing a .c file can be held a direct infringement
of a patent on a "computer equipped with code for performing X".

> A deterministic algorithm which takes one bit sequence as input and produces 
> another as output is a piece of pure mathematics.  And that is *exactly* the 
> sort of thing which is being patented under the name of "software patents".

To me the distinction is clear: you have to add something to the
algorithm before you arrive at patentable matter. You apparently
consider the addition (a computing device with a memory) to be
irrelevant, and hence you don't see a distinction. 

> The IEEE magazine (Spectrum) had an article about this recently, which made 
> much the same point: you cannot make a valid distinction of this sort.  It 
> went into some detail on why various "distinctions" used by the US courts are 
> hopeless and illusory.  The current US excuse is that any mathematical 
> algorithm "plus a generic computer" is patentable.  Is that what's being used 
> in Europe too?

The European standard is that the claim must cover a piece of
technology: a device or method that exhibits a "technical effect".
And no, I don't have a definition for "technical".

In Europe we look at this effect to determine if it's patentable.
The question whether it's an algorithm or software is largely
irrelevant. You could build dedicated hardware that performs 
the algorithm instead of software. If the end result is something
"technical", then it's patentable.

Perhaps this is more sensible to you than the US approach?

> There's a reason the FFII preferred standard is that the inventive part of a 
> patent must be on some method of manipulating the physical world.  That's the 

That's what European patent law also pretends to be. FFII is pushing
a very restrictive definition of what "manipulating the physical
world" means, but otherwise they're completely in line with how
patent law works.

> I guess "the mathematics is public domain, but any use of it is patented"?

More like, the expression in .obj is patented, but the expression
in .PDF is not. Feel free to publish papers; don't distribute
devices that execute the algorithm disclosed in those papers.

> > but I would not
> >advise my client to oppose a European patent on the ground that
> >it's a computer program as such.
> Again, the grounds should be that it's a *mathematical method*.  The "method" 
> or "process" in such a patent is in fact a *mathematical* method.  You get 
> mathematicians specializing in fields like theory of computation to testify 
> to that.  The inventive step is solely in the new mathematical method (not in 
> the generic computer).

The problem is exactly the same: European patent law does not
exclude patents on mathematical methods, but only on mathematical
methods _as such_. Apparently this is not the same thing for the
people who wrote that law. They may have been wrong, but if this
is the law, then that's what we have to work with.

But again, you have to show a relation to the physical world.
In Europe, it has to be technology, or it's not patentable.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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