Software patent

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The patentability of software, often referred to by the expression software patent, is one of many legal aspects of computing, and one of many aspects of exclusive rights policy, often spoken of by the term intellectual property. The appropriate scope of software patentability is currently subject to rather intense debate, see Software patent debate.

Contents

1 Definitions

1.1 Software patent
1.2 Computer-implemented invention
1.3 Other terms

2 Law

2.1 Software patents and software copyright

3 See also

Definitions

It is fair to say that different people often mean very different things when they refer to "software patents", and that individual views on the "patentability of software" may vary considerably depending on what definition of the term is used.

Software patent

There is no legal text that defines what exactly is a software patent and what is not; and no universally accepted definition of the expression.

However, FOLDOC defines software patent as "A patent intended to prevent others from using some programming technique". This defintion is not universally accepted.

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 (e.g. "means for controlling"). Additionally, under the so-called doctrine of equivalents and its analogues, a patent that on its face does not appear to require software can be infringed in certain circumstances if software is used as an equivalent of (i.e. to substitute for) a non-software element, making even more difficult to draw the boundary.

Computer-implemented invention

The term "computer-implemented invention" was put forward by the European Commission and defined as "any invention the performance of which involves the use of a computer, computer network or other programmable apparatus and having one or more prima facie novel features which are realised wholly or partly by means of a computer or computer programs." [1]

Other terms

The terms "software-enabled invention", "software-related invention", "software-operated invention" and "pure software patent" are also used.

Because the term "software patent" has acquired strongly negative associations in some circles, some campaigners on both sides of the debate prefer to reserve the term "software patent", or "patent on pure software", more narrowly, to refer to contributions that they believe should not be patentable subject matter, in contradistinction to the term "software-enabled invention" which would refer only to contributions which would involve patentable subject matter (otherwise they would not be "inventions").

According to taste, a "pure" software patent might therefore be a patent on:

A piece of code not involving "control of the forces of nature";
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 chose 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.

Law

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 order to harmonize the national laws a step further, the EU Commission has proposed a Directive on the Patentability of Computer-Implemented Inventions; but settling the exact terms of the Directive has proved highly controversial.

Software patents under multilateral treaties:

Software patents under TRIPs Agreement
Software patents under Patent Cooperation Treaty
Software patents under the European Patent Convention

Software patents under national laws:

Software patents under US patent law
Software patents under UK patent law
Software patents under German patent law

Software patents and software copyright

Under international agreements, any software written is automatically protected by copyright. This forbids the direct copying of any part of the program code. Applying for, and being granted a patent gives much stronger protection. The invention achieved by the code may then be protected, and others who use the same invention may be sued to stop, or forced to licence the patent (even if they have come up with and developed the idea independently).

This gives the patent-owner much stronger protection for his invention. But it also means he has been granted a state-backed monopoly, and the chance to close out all competition, if the patented invention cannot be avoided. The question of whether in the area of software this is on balance a good thing or a bad thing for society has attracted intense and heated legal, academic and political disagreement. This is reviewed in the associated article Software patent debate.

A particularly active focus of the debate at the present time is the proposed EU Directive on the Patentability of Computer-Implemented Inventions, also known as the "CII Directive" or the "Software Patent Directive", which is scheduled to return to the EU Parliament in 2005.