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.

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.

Related Topics:
Law - Case law

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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.

Related Topics:
Europe - European Union - 2002 - EU Commission - Directive on the patentability of computer-implemented inventions - 2003 - European Parliament - Council of the European Union

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Software patents under multilateral treaties:

Related Topics:
Multilateral - Treaties

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

Software patents under national laws:

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

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• A piece of code not relating to "the use of controllable forces of nature to achieve predictable results". {{fn|1}}
• A piece of code relating solely to the "processing, handling and presentation of information" {{fn|2}}
• A piece of code with no "technical effect" (depending in turn on how one chooses to define "technical") {{fn|3}}
• A piece of code as an abstract listing, not actually running on a programmable device {{fn|4}}
• A piece of code with merely literary merit, rather than any identifiable functional benefits {{fn|5}}

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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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 (that is, to substitute for) a non-software element, making even more difficult to draw the boundary.

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Computer-implemented invention

The term "computer-implemented invention" was put forward by the European Commission, based on an expression used by the European Patent Office http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2_3_6.htm, and proposed 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." http://europa.eu.int/comm/internal_market/en/indprop/comp/com02-92en.pdf The term has been criticized as a politically motived obfuscation manoeuver http://elis.ugent.be/~jmaebe/swpat/cii.html. The German chancellor Schröder is quoted with "the manuscript is titled with 'software patents' - wait, I may no longer say that - well the 'protection of computer-implemented inventions'" http://www.heise.de/tp/r4/artikel/17/17825/1.html.

Related Topics:
European Commission - Computer - Computer network - Prima facie - Novel - Computer program

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The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning.

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Litigation

Several successful litigations show that software patents are enforceable in the USA. For example, Eolas was awarded $565 million from Microsoft. See List of software patents for more examples.

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So far there does not appear to have been any case before a European Court where infringement of a software patent has been proved and damages have been awarded. However, there have been a few court cases where the validity or not of a patent involving software has been the question, where in some European countries a national court has ruled either that a particular patent is valid (eg Germany); or that other patents involving software could be (eg UK). See Software patents under the European Patent Convention for details.

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