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Software Patent
of the year 2006

July – Patent 5

EP0256753 – Method and apparatus for preventing the copying of a video program

EU-Patent on software (algorithm)
Application to European Patent Office on 4/8/1987 by Macrovision Corporation (USA)
Granted on 28/8/1996
Date of priority: 11/8/1986 (valid no more than until 11/8/2006)
Patent attorney: W. H. Beck, Greener & Co
Appeal filed on 24.6.1994 by Philips Electronics N. V. (Niederlande) on grounds of lacking inventive steps according to articles 52(1) and 56 EPC
Result of the appeal: modification of the patent on 19/7/1996
Patent specification provided by FFII/Gauss
Patent specification provided by EPO/espacenet
Access to records provided by EPO/epoline

Advice on the reading of patent specifications:

The decisive element are the claims, as they specify which actions are forbidden within the framework of the patent.
Violating one single claim is sufficient to be considered a patent violation. Generally, claim number 1 is the decisive main claim which covers all other claims relating to special cases.
The description is intended to help the reader interpret the claim. At the same time, it is supposed to document and disclose the details of the invention. This disclosure is the original purpose of the entire patent system.
In practice, a patent specification contains no detailed information on how the patented procedure could be implemented (even if the patent owner allowed the implementation). In particular, a software patent contains no program code (reference implementation), but merely describes the idea of a software.

Patented idea: A video tape recorder detects signals in the broadcast television programme, which are to prevent copying and responds to them by refusing the videotaping.

Main claim: A video tape recorder responds to an additional pseudo-sync pulse which follows the real sync pulse by refusing the recording of the television programme.

The wording of the claims includes a number of apparently technical terms like "waveform" or "sync tip level". However the innovation is not related to applying knowledge about electromagnetic waves but comprises the plainly logical association "IF the signal occurs THEN refuse the recording". Irrespective of the realisation by means of a computer programme or hardware circuits a logic patent – respectively a software patent – is involved.

The original version of the patent specified an additional "waveform". The specialisation on a pseudo-sync pulse was originally a separate claim. Its inclusion in the main claim was a reaction to the appeal.

Further claims:

Distinction of the pseudo-sync pulse from the real sync pulse by means of a directly following positive pulse of a different amplitude.
Various pseudo-sync pulses; Generating a signal (e.g. an electrical potential) as a function of the frequency, possibly for a certain time interval.
NOT refusing the recording, if there is NO pseudo-sync pulse
Video tape recorder implementing the patented logic

Description: The patent description documents the insight that purely sender sided methods of broadcasting television programmes in a way which allows viewing but not the recording with a video tape recorder do not work (nevertheless such methods have been patented). This problem – it is further documented – can be solved through the video tape recorder's refusal to record as soon as this device recognises the copy protection.

Everyday parallel: A music fan (video tape recorder) wants to make a private copy of a valuable original CD ("television programme") on an audio tape, in order to listen to it in the car. Suddenly he sees the imprint ("signal"): "This CD is copy protected." An analogue copy on an audio tape however can be made.

If the music fan in spite of that makes a private copy he or she infringes the reformed German copyright of 2003 which does not prohibit private copies but the avoidance of copy protection mechanisms
If the music fan – after reading the imprint – does without the private copy he will infringe the patent.

Examples for patent infringements: The tag by means of a pseudo-sync pulse had originally been developed in order to confuse standard, unprepared video tape recorders. If a standard video tape recorder falls for a pseudo-sync pulse and thereupon refuses the recording of a television programme (which is not broadcast according the standards) the patent is infringed.

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