Software Patent
Software patents and patents on computer-implemented inventions (CII) are a class of patents and one of many legal aspects of computing. There is intense debate as to what extent such patents should be granted, if any.
The Free On-line Dictionary of Computing provides a general definition of a "software patent" as "a patent intended to prevent others from using some programming technique", while the European Patent Office (EPO) provides a general definition of a "computer-implemented invention":
"an expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie the novel features of the claimed invention are realised by means of a program or programs"
or, expressed in other words,
"an invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program
Software patents vs copyright
Software patents are sometimes confused with software copyright. Under international agreements, such as the WTO's TRIPs Agreement, any software written is automatically covered by copyright. This regulates the direct copying of the program code.
Applying for, and being granted a patent gives stronger restrictive power. It covers the programming method itself, independently of any implementation in code. Usually, reimplementing a program will avoid copyright infringement, but not patent infringement. Like all patents, software patents are enforceable regardless of whether the competitors were aware of the patent (patent applications are kept secret for at least 18 months) and the software was completely independently developed.
A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringement, including triple damages in the USA if the infringement is considered deliberate, which means knowing of the patent but not licensing it (even under the assumption it was invalid).
As laid out in TRIPS, patents are required to last 20 years after filing, provided the maintenance or renewal fees are paid.
The USPTO has traditionally not considered software to be patentable because by statute patents can only be granted to "processes, machines, articles of manufacture, and compositions of matter". In particular patents cannot be granted to "scientific truths" or "mathematical expressions" of them. This means that most of the fundamental techniques of software engineering have never been patented.
The USPTO maintained this position, that software was in effect a mathematical algorithm, and therefore not patentable into the 1980's. The position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could. This ruling wasn't as straightforward as many would have liked, forcing many electronic device makers into the courts to establish that their inventions were in fact patentable.
Due to different treatment of federal patent rights in different parts of the country, in 1982 the U.S. Congress created a new court (the Federal Circuit) to hear patent cases. The new circuit rejected rulings from some parts of the country, and nationalized others. For example, the court made patents generally easier to uphold by presuming patents were valid unless proved invalid and weakening the defence of nonobviousness. This court allowed issues, such as patentability of software, to be treated uniformly throughout the US without reaching the Supreme Court. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines. See Software patents under United States patent law.
Jurisdictions:
Substantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions.
The national jurisdictions relating to software patents in Europe and in the European Union are not harmonized even though some harmonization has been brought into the national jurisdictions in the 1970s and 1980s. Interpretation of the substantive law varies to some extent from state to state. In 2002, in order to harmonize the national laws a step further, the EU Commission proposed a Directive on the patentability of computer-implemented inventions, but settling the exact terms of the Directive has proven highly controversial. In 2003, the European Parliament deeply amended the original draft from the Commission. Two years later, the Council of the European Union (i.e. national government ministers) mostly reinstated the original text, but the text was eventually rejected by the Parliament on July 6, 2005. The proposed directive will not become law.
Software patents under multilateral treaties:
• under TRIPs Agreement
• under the Patent Cooperation Treaty
• under the European Patent Convention
Software patents under national laws:
Software patents under United States patent law
Software patents under United Kingdom patent law
Scope of software patentability
As noted above both the EU and the US have traditionally restricted the ability to patent software. This has led to several proposals for some very narrow definitions of what software actually is. For example:
• A piece of code not relating to "the use of controllable forces of nature to achieve predictable results".
• A piece of code relating solely to the "processing, handling and presentation of information"
• A piece of code with no "technical effect" (depending in turn on how one chooses to define "technical")
• A piece of code as an abstract listing, not actually running on a programmable device
• A piece of code with merely literary merit, rather than any identifiable functional benefits
• A further difficulty in drawing a clear boundary between software patents and other patents may come from the fact that a patent claim can be written so as to embrace many different implementations (some using purely mechanical or electrical means, others using software), for instance by using functional features under certain jurisdictions (for example, "means for controlling"). The expression "computer-implementable inventions" has been coined to refer to this reality.
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This article is licensed under the GNU
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It uses material from the Wikipedia
article "Software patent".
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