Patent lawyer patently wrong

Dear Mike,

I think this little statement of John Collins made it perfectly clear that the latest EU patent proposal is not about 'clarifying' and 'unifying', but all about opening the floodgates:

'The original proposal was solely designed to clarify and unify existing practice in the EU'.

Notice that he says 'clarify and unify existing PRACTICE' and not 'clarify and unify existing LAW'. It is indeed common practice to patent software in Europe these days. The only problem for the European patent office and the applicant is that these patents can not be enforced under current patent law, they are in fact ILLEGAL. If the current patent proposal (the latest one written by behind the back of the European parlement) was accepted, that all these 'illegal' patents would become 'legal' and enforcable.

He also suggests that the current proposal has been amended by the EU parlement, which is AFAIK NOT the case. All amendments have been wiped of the table with some of them replaced by a very watered down version: 'However the current version - as a result of amendments made by the European Parliament - will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless.' Existing patents that were already worthless to start with.

Wouter Depuydt
A very concerned software engineer

Just a note on the software/ code debate from a practising lawyer and reader of the Inq. (Yes, there is such a thing).

You cannot copyright an idea or a function or a description of how something works. Copyright protects the sequence of numbers in code (or letters in a book) but NOT the ideas or function the code express. So if someone writes code that says "a = b + c" and someone else writes code that expresses the same function there is no breach of copyright, unless the new code actually lifts sequences of numbers from the old code.

This is why you can get 101 Harry Potter rip-offs - the words on the page are protected, but not the ideas behind the story. Anyone is free to come up with their own version.

Legally, you get into a debate (and lawyers get fees) if new code lifts portions of old code, or "looks and feels" the same as existing code.

However, Torvald's comment is legally spot on. You cannot copyright software (ie functionality) but you can copyright code (ie sequences of numbers).

The fact that this is confusing to the industry it is meant to protect suggests that the whole thing needs reviewing. (And don't get me started on whether or not software is goods or services!)

D Hamill

Hi Mike,

In reply to that lawyer:

"Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software".

I am failing to see the difference between the two. Software does not run without the code, right?

Moreover, it would be impossible to protect software code. What if someone else comes up with the same sequence of instructions? I am oversimplifying but what if I copyright addition for example, like in a = b + c? That would make any program using addition breach my copyright.

Truth is that people are sick of old aged programs and companies milking the almost dead cash cows. We need radical change. We need new algorithms and we need them in every aspect of computing.

There is a thing called code reuse. Companies are writing libraries of reusable code and selling them. They are the loudest fans of software copyrights.

"serving only to endanger genuine inventions".

There is no such thing as genuine invention. If electricity wasn't invented I doubt there would ever come to all this mess.

"Innovators need to be certain their patents are valid throughout the European Union."

How caring! In some eastern european countries (and likely in some other countries too) there is so called patent mafia working closely with patent office. You bring the invention, they take your money and then give it to the patent mafia that in turn sells it to the highest bidder. What kind of protection they offer against that?

Regards
Igor

I always describe linux as a tyranny - and pretty much every successful open source project is one.

That's the ancient definition of tyrant - "elected dictator". A Roman Tyrant was elected to six months of absolute power. For as long as penguinistas are happy with Linus' leadership, he will be our dictator.

But, as ESR points out - we have the *right* to overthrow him. It's up to him to make sure we don't get the *desire*. And this is where Sun falls down - we have no right to control our own destiny. We have *chosen* to follow Linus, we have no choice but to follow Sun (if we want to be part of Java).

Cheers
Wol

Dear Mr Magee,

The thrust of John Collins' criticism is that, in considering the proposed EU software patent directive, Linus does not take on board that "copyright can only protect software code and not software".

This means you cannot copyright the functionality of a piece of software, only the exact code sequence (text character or binary strings).

So if I write a piece of code to do exactly what someone else's copyrighted code does, provided my source and compiled code sequences do not significantly duplicate the copyrighted ones, I am street legal.

Well, that's all very fine and (correct me if I'm wrong) I don't think Linus is upset about normalising EU-wide copyright laws. This will if anything strengthen the GPL (The copyright license agreement under which he releases Linux).

I'm quite impressed that the corporate camp have managed to find a lawyer who can't tell the difference between a copyright and a patent!

Regards
Guy Inchbald

'John Collins, a partner at UK firm Marks and Clerk said: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code and not software"'.

Apparently John Collins is not that long-awaited phenomenon, the world's first lawyer to demonstrate an inkling of a clue about how computers work.

Software *is* "software code. That's all you get. The man's a buffoon.

Tom W.

Dear Mr Magee,

I would like to comment on the article you wrote regarding the comment by Mr Collins of Linus Torvald's position :

http://www.theinquirer.net/?article=19964

It is a bit disappointing to see this Mr Collins cited without balancing his quotes with quotes of his opponents on the issue.

As a matter of fact, when Mr Collins states that : "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright an only protect software code and not software", it would have been interesting to have someone be able to say that Mr Collins lacks a fundamental understanding of software engineering basics as he seems to be unaware that software IS code..

Very sincerely
f.p.

ID Cards

Exactly how will a UK id card prevent foreign terrorists and criminals entering Britain?

This and many other questions about the operation of ID cards remain unanswered by Blunkett.

Geoff Lane

France

Hello,

In France ID card is a very old and common paper, it appear in 1889 to prove your nationality. The ID card is free since 1998 because everyone should have one now. The cards contains same informations as yours: name, address, photo (on card and database) and fingerprint ( not visible on card ). The french law is very restrictive on files, the database should only be used to check identities.

For example if a policeman find a fingerprint he can't use that database to find the name of the owner ( looks like the profile on innocent people ).

In France if you don't have an ID card, you could use some other official ID paper like passport, refugee card, foreign workers card...( could other papers be used instead of that id card in UK ? ) .

The £85 seems a lot of money for a paper that is free here.I don't remember any article on abuse of the French ID files, and i don't think that the UK will use badly those files. The line that astonished me was about terrorism ( UK Patriot Act coming ? ). I don't see the point between ID cards and stoping terrorism and drugs in the UK ( terrorist used to have real papers with their real names no ? ).

Dimitri Rochette

PS : The "good point" is that you receive this letter because someone think your articles are making the opinion. The bad point is that if you're so "big", this email like maybe all yours are scanned by Echelon (at least).

Spontaneous Rebooting

Hi,

My first reaction to hearing about spontaneous rebooting after enabling PAE is that you could have a defective or slightly incompatible memory module. Also, are all the memory modules in the system identical (all the same part number)? Does the problem go away when you take out half of the memory? Have you tried increasing the latency settings?

Regards
Peter S.