Although at least software per se is patentable in the USA, be that a good thing or a bad thing. It's not in Europe, courtesy of the EPO's requirement for a "technical effect". If you can combine your software with a figleaf of technical effect (i.e., the software actually does something other that direct a computer to work), the EPO will grant it. However, if you have, e.g., financial software, you have no chance in Europe. The EU tried to put together a Directive on the patenting of computer software, but it failed earlier in the year, and we're back to technical effect.auric said:
All software can ever do is direct a computer to work.
GTM said:
Ion wind sounded believable to me but I'll believe anything. If he could find a way to get rid of the wires it'd be great. Otherwise we'd have to put that electrified mesh that dodgems use everywhere to travel on it.
Sorry, Paul, but all European computer-program patents MUST have a "technical effect" of some sort. It is usually something that the computer then directs something to do, e.g., a milling machine. It may be buried in the text somewhere, but it must be there. And the EPO sees a big difference between financial and technical software. It's a simple fact of life that everyone in the profession has to live with.Paul Ranson said:
Wrong on both counts - a discovery order from a court (awarded on presentation of reasonable grounds) will allow examination of all documentation not the subject of legal privilege, and that would probably include inspection of the software. The USA is especially big on discovery. It would be difficult to enforce, but not impossible - and given the sort of penalties a US court can throw at you (including treble damages), it would be a brave man who would try it on any reasonable scale. (A low-profile individual might get away with it).Paul Ranson said:
It is probably possible, unless you succeed in maintaining a wall of complete silence. I'm always amazed how word gets around in the chemical industry. I don't work in the computer industry, so perhaps the folk there are better at keeping their mouths shut, but somehow I doubt it.Paul Ranson said:
This is the nub of the argument - it turns entirely on what is meant by "invention". Different countries have different definitions, and those definitions are interpreted differently by different national courts. Even so-called European patents are interpreted differently. In the most notorious case, Epilady, the UK High Court and the German Bundespatentgericht came to exactly the opposite conclusions on the same set of facts. The courts have a different opinion from you, and unfortunately what they say goes.
If it's an invention, it can't be the subject of copyright! And you'd have to make it noticeably different - if you took a substantial portion of a copyrighted work, you still infringe. This would apply to a computer program - if you took a substantial chunk of a program, you infringe - and that includes the case where you never produce the program in written form.
This can be the case, but not always. There are certainly trivial "inventions" (as we've seen, a notorious feature of US practice), but the Europeans are harder. And in the chemical/mechanical field where I work, the bar is rather higher than I'd like!
Pharmaceuticals are like other patents, in that the invention must have utility, so you've got to say what the thing is useful for. In the case of pharmaceuticals, there is an even bigger hurdle - the national licensing authorities, particularly the US FDA. The documentation (details of clinical trials, analyses) to get a pharmaceutical approved for a particular indication (treatment of a particular disease) literally fills rooms - it doesn't take forever, it merely seems that way. On average, a new pharmaceutical will get on the market 12 years after the patent application is filed, by which time most of the patent life is gone. This is why pharmaceutical patents are uniquely extendible. Oh, and if you find your drug has another indication, you have to go through the whole thing again for that indication.
Oh yes, you can. If you isolate a substance from nature and place it at the disposal of the public, you can patent that substance, even though it existed forever. This is a feature of European-type patent law. In the USA, to the best of my knowledge, you can't do this as this would amount to "mere discovery".Tenson said:
If it's exactly the same substance (same molecular formula, same stereochemistry), it will always work exactly the same, be it natural or synthesised. Any difference in effects will come from other natural materials that are there with the desired natural substance.
So, legally, there are many ideas that cannot be protected by copyright and cannot be patented, but are, nonetheless, useful and have a commercial value.
Here's an invention for determining the greatest common divisor of two numbers, there's no danger of copyright or patent infringement because the prior art is at least 2000 years old.
Certainly.Paul Ranson said:
First up, it would fail at least the European test for being an "invention" (Art.52(2)(a) EPC).
The idea, no, a physical representation of it (such as a computer program), yes. And copyright would subsist in that program, even if the idea were 2000 years old. Remember, prior art is a patent concept that counts for nothing in copyright - the only relevant question is, is it an original (non-copied) work? If it is, it automatically has copyright under the Berne Convention.
aka the "Coca-Cola method" is always an option in many cases. It has the disadvantage that, if somebody else discovers the same thing later, you can't stop them. Worse, there are circumstances, especially under US law, where they can stop you.
So the European patent I pointed to earlier, from Qnetiq, which used to be DERA a part of the UK government, is implicitly invalid?
Without reading the whole thing I couldn't comment, but that wasn't a granted European patent you had, Paul, that was an unexamined published British application. At this point, you see them at their broadest scope, before the patent office starts chopping them back. There is an equivalent EP application, but it's having a tough time (I had a quick peek at the EPO's Epoline on-line Register).Paul Ranson said:
