Notes

Art. 52 European Patent Convention (EPC) - 1973 European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. The following in particular shall not be regarded as inventions withing the meaning of Paragraph 1:

• Discoveries, scientific theories and mathematical methods;
• Aesthetic creations;
• Schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
• Presentations of information.

Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-atter or activities as such.

So, can software be patented? In the law, Computer programs as such are not patentable, however we have Computer-Implemented Inventions (CIIs).

Importance of CII

Requirements for Patentability of CIIs CIIs can be granted a patent if there is an incentive technical contribution to the prior art.

Computer Implemented Inventions (CIIs) EPO Guidelines, Part F, Chapter IV. The expression "computer-implemented inventions" (CIIs) covers claims which involve:

• Computer, Computer Networks or other programmable apparatus.
• Whereby at least one feature is realized by means of a program.

Methodology at the EPO Two hurdles for patentability:

• Is there an invention? "patent-eligibility"
• Does it have required qualities? Novelty, Inventive-Step ("non obviousness").

Patent Eligibility - Hardware & Software Claim The claimed subject-matter uses technical means (e.g., computer). Very low hurdle: essentially it is sufficient that any kind of hardware is mentioned in the claim (a single technical feature in the claim is enough). As soon as you have a computer in the claim you overcome this (and this is always the case!)

Patent Eligibility - Software Claim

• A computer programs can also be claimed by itself if it is capable of bringing a "further technical effect" when run on a computer.
• A "further technical effect" is a technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run.
• The normal physical effects of the execution of a program, e.g. the circulation of electrical currents in the computer, are not in themselves sufficient to confer technical character to a computer program, something more is needed!
• Examples of further technical effects which confer technical character to a computer program are:
  • The control of a technical process (manufacturing plant)
  • The control of the internal functioning of a computer.

Patent Eligibility - First Hurdle = Low Threshold A method of encouraging costumers to be loyal buyers by giving a discount on future purchases (Business Method, so Excluded). A computer with a database of customers who have preciously purchase and applying a discount to any subsequent purchase (Not Excluded) (Hardware + Software Claim). A computer-implemented method of encouraging costumers to be loyal buyers by giving a discount on future purchases (Not Excluded) (Software Claim). A program to do the method of encouraging costumers to be loyal buyers by giving a discount on future purchases (Excluded).

Inventive Step and Novelty Is the technical effect:

• New, prior art research.
• Inventive, a solution to a problem not provided by an averagely skilled person.

Examples: Patentable or Not?

• An anti-lock braking system (ABS) configured for:
  • Detecting lateral strain on each wheel.
  • Monitoring if a threshold is exceeded.
  • Selectively adjusting brake fluid pressure to each wheel
• A method of sorting a list of numbers, comprising:
  • Finding the smallest number
  • Swapping the smallest number to the top of the list.
  • Repeating the above steps for the remainder of the list.

It is Patent-Eligible: Breaking System:

• Technical feature of braking system.
• All of the features contribute to the technical effect.

Sorting Method:

• Not Patent-Eligible (no technical feature) - can be fully done by the human brain.
• A computer-implemented version of the sorting method would be patentable (because of the presence of the computer).

Multi-layered Protection on Software

Software Protection: OCS Licensing Agenda:

• All Right Reserved regime and the need for a new licensing model
• Proprietary Distribution vs Open Distribution
• Copyleft
• OSS and its relationship with Copyright Law
• From OSS to CC

Historical Background: before copyright protection for software

• At the very beginning of software industry, software was freely shared (in its source code version)
  • Hardware was the Source of Revenue
  • Software was easily understandable and modifiable (by developers in universities, research centers) and typically shared with other to find bugs, improve it, customize it.
• When the software industry became independent from the hardware one software started to be protected (as it is today) by a combination of copyright and trade secret (on the source code, distributing only the unintelligible object/binary code)
• Software started been distributed under an ARR regime
  • Proprietary licensing, that is EULA (End-User License Agreement).

Proprietary Distribution & "All Rights Reserved" Regime The current © "default rule" is characterized by:

• Full protection ("all rights reserved")
• For the maximum duration allowed by the law
• No formality is required to enjoy protection
  • Rule generalized by the Berne Convention
• Rules designed for professional authors of traditional works.
• The "full © default" imposes significant costs
  • Negotiation costs
• Today, not everybody "publishing" needs this protection as an incentive
  • E.g. some websites, blogs, wikis, etc.
  • Yet, full protection is automatically granted and opting out of it is also complex and costly

A new © Licensing Regime for new authors

• Informatics and networks triggered sociological and cultural changes
  • Intellectual creation and platform for interaction
  • Innovation is collective & incremental
  • Development of technical tools to favor collective creation
• Cost of creating and publishing dropped
  • Intermediaries are no more strictly needed to "publish"
  • Users are encouraged to become authors themselves.

Open Licensing - Copyleft Copyleft is the practice of using copyright law to remove restrictions on distributing copies and modified versions of a work for others and requiring that the same freedoms be preserved in modified versions.

• Is a form of (copyright) licensing, so copyleft may be the opposite of copyright in a practical or ideological sense, but it is legally strictly related and based on copyright.
• May be applied to copyrighted works of various kind: computer software, documents, music and any others.

Copyleft licenses are also known as viral, reciprocal or persistent licenses.** The copyleft license "by definition" is widely used GNU General Public License:

• Linux operating systems and several other open source software are released using (also) this license.
• It is in the software field that the copyleft idea historically originated and still produces its more impressive effects (also in terms of feedback for business activities).

Proprietary Distribution, All rights reserved, that is, all rights are with the author unless they are licensed (sometimes one by one). Open Distribution, Some rights reserved, that is, some rights are reserved to the author and the others are free for third parties to be used according to the license adopted.

Open Source Software (SW) - Historical Background At the very beginning of software industry, software was freely shared (in its source code version):

• Hardware was the source of revenue.
• Software was easily understandable and modifiable (by developers in universities, research centers) and typically shared with others to find bugs, improve it, customize it.

When the software industry became independent from the hardware one software started to be protected (as it is today) by a combination of copyright and trade secret (on the source code, distributing only the unintelligible object/binary code). Software started been distributed under an ARR regime with Proprietary Licensing.

Open Source is based on Copyright FLOSS is not synonym of public domain

• Stallman and others saw how it was to "appropriate" open software.
• "The GNU General Public License is intended to guarantee your freedom to share and change all versions of a program" - to make sure it remains free software for all its users"

Legally speaking, open-source licenses are based on copyright

• Developers that use the GNU GPL protect your rights with two steps:
  • Assert copyright on the software, and
  • Offer you this License giving you legal permission to copy, distribute and/or modify it
• Open-Source developers can impede the "privatization of new versions (derivative works) of their creations.

The term "free software" refers to the freedom of modifying it, but distributors and developers are free to charge for their work.

The first OSS License and Its principles 1986, Richard Stallman (free software foundation) SW license is free if it carries the following 4 freedoms:

• 0, the freedom to run the program for any purpose
• 1, the freedom to study and modify the program
• 2, the freedom to copy the program so you can help your neighbor
• 3, the freedom to improve the program, and release your improvements to the public, so that the whole community benefits.

The Source Code must be Open. The Viral Clause, prohibiting the privatization of the code.

• BSD-like licenses as the most eminent example of non-viral free software.

*Making Money with Copyleft Indirect Advantages:

• Reciprocity, receive modifications, comments, etc.
• Reputation and career incentives.
• Save on entry costs (and have to share in exchange).
• Fight against powerful incumbents with the help of a community.

Definitely possible with FLOSS:

• Self-Services
  • Developers have a competitive advantage in consultancy and support.
  • Free to keep "in-house" customization secret.
• Self-Proprietary improved versions
  • You can do so only if the license is not viral or you are the only copyright holder in the copyleft world. (You cannot make proprietary the community's improvements unless you get permission).

Open Source Distribution like RedHat. Were among the first oppositions to the patentability of Software. From Open Source we arrived to Creative Common Licenses.

CC License A CC license is a copyright license that authors can associate to their creative works, stating that "some rights [are] reserved". In order to create a CC License there are several modules that can be combined (detailing which rights are reserved):

• Attribution, users "must attribute the work in the manner specified by the author or licensor", so that they can receive credit for their work.
• [Non] Commercial, authors can choose if other parties may or not "use the work for commercial purposes".
• [No] Derivative Works, authors can choose whether licensees may or not "alter, transform, or build upon the work".

CC's communication Effort

The Creative Common License is Machine-Readable because when you request one, you obtain a digital code. You can include this code in your project to show how it is protected and which are the things that limits and possibilities of your production.