Software patent
Software patents refer to patents that have been, will be or could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e. the form in which they are put in practice (or used) to produce the effect they intend to provide.
Software patents may be classified in three categories: 1) patents on products or processes that may or may not include software in order to be implemented, 2) patents on products or processes that need software in order to be put into effect (along with some sort of hardware) and 3) patents that are nothing more that source code or algorithms.
These categories are arbitrary and have no legal direct value, but they may help to understand the issues at stake. Moreover, a same patent may contain several different claimss, each of which belonging to a different category. So, it is actually and rigourously a classification of software patent claims rather than one of software patents, but it is quite equivalent as far as conferred protection is concerned, since the claims are the most important part of a patent for determining the protection it confers to its owner.
The "first" type of software patents can be defined as the patents on products or processes that may or may not include software in order to be implemented.
For instance, a (fictional) patent with a claim such as "A high-pass filter comprising first means for converting an input analogue signal into a digital signal, second means for... and so on" refers to a product, i.e. a filter in this case, that may or may not include software. Indeed, the filter may be implemented using either electronic "first means for converting..." or software "first means" running on a hardware support.
The "second" type of software patents can be defined as patents on products or processes that need software in order to be put into effect (along with some sort of hardware).
For instance, a (fictional) patent with a claim such as "A high-pass filter comprising 1) a computer, 2) a program able to run on it and to convert an input analogue signal into a digital signal, 3)... " refers to a product, i.e. a filter, which needs a computer and a computer program (or a software) to be implemented.
The "third" category consists in patents that contain nothing more that source code or algorithm.
For instance, a (still-fictional) patent with a claim such as "An algorithm which consists in taking a sequence of numbers as an input, applying to each of these numbers some kind of transformation, ..." falls within this category.
Software patents are treated differently under different jurisdictions.
In the 1950s, 1960s, and 1970s, the United States Patent and Trademark Office (PTO) did not grant a patent if the invention used a calculation made by a computer. The PTO's rationale was that patents could only be granted to processes, machines, articles of manufacture, and compositions of matter; patents could not be granted to scientific truths or mathematical expressions of it. Since the PTO viewed computer programs and inventions containing or relating to computer programs as mathematical algorithms, and not processes or machines, they were therefore not patentable. This view was upheld by the U.S. Supreme Court in Gottschalk v. Benson (1968) and Parker v. Flook (1975).
In the 1981 case of Diamond v. Diehr, the U.S. Supreme Court ordered the PTO to grant a patent on an invention, even though there was no invention claimed besides the use of a computer program (which used well-known formulas, this was also said before the U.S. Supreme Court by the patent attorney) for calculating the time when the rubber was cured and thus the mole could be opened. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm (which it in fact was, exactly the industrial use of it), but was a process for molding rubber, and hence ordered the PTO to patent it.
After this point, more patents on software began to be granted, albeit with conflicting and confusing results. The Federal Circuit attempted to clarify the rules; requiring that the computer program must have a practical application. However, since all software is written to perform some useful activity, many believe this to be the exception that swallows the rule.
Meanwhile, the Clinton administration pushed software patenting from the administrative agency side, by appointing Bruce Lehman as Commissioner of the Patent and Trademark Office in 1994. Unlike his predecessors, Lehman was not a patent lawyer but the chief lobbyist for the Software Publishing Industry. In 1995, the PTO established some broad guidelines for examining and issuing software patents. The PTO interpreted the courts as requiring the PTO to grant software patents for an extremely broad variety of circumstances, including those that are essentially algorithms only distantly connected to physical processes. Note, that although the US Congress has never legislated specifically that software is patentable, the broad description of patentable subject in the Patent Act of 1952 and the failure of Congress to change the law after the court decisions allowing software patents, has been interpreted as Congressional acquiescence.
Another impetus for software patenting was the growing recognition that using the copyright law to protect non-literal infringement of computer programs (rather than just piracy) was getting out-of-control. When comparing patent protection to the use of non-literal copyright infringement, many commentators argued that many protections for competitors are built into the patent system that are lacking in the copyright laws. Specifically, these commentators pointed out copyrights are not examined, but patents must first be examined to determine if the program is both novel and non-obvious; the scope of patent rights is defined by the patent claims, while the scope of non-literal copyright infringement is unclear; and the patent term of 17 or 20 years is much shorter than the copyright terms. When courts began to permit software invention to be patentable, other courts also began restricting the use of copyright law to obtain patent-like protection of software.
Those who favor software patents believe that software are inventions to the same extent as hardware and that the law should and, in practice is not able to, distinguish software inventions from hardware inventions. Proponents also argue that the patent system rewards inventors of innovative approaches in software, and thus promote innovation. This belief is important in the US, because this is the only permitted reason for a patent to be granted according to the US Constitution. More specifically, the Constitution only permits Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Opponents charge that software patents are particularly favored by lawyers, who financially benefit from patent litigation, and by some (though not all) very large software companies, who hope to use patents to prevent competitors from using the patented technology.
The national jurisdictions relating to software patents in Europe and in the European Union are not harmonized. The EU Commission proposed a directive on the Patentability of Computer-Implemented Inventions, but after the directive was heavily amended in 2003 when reviewed at the EU Parliament, the Commission now thinks about withdrawing the proposal.
Almost all European countries are members of the European Patent Organisation but the European Patent Convention does not govern infringement and revocation proceedings before national Courts. As far as such actions are concerned, every European country may have, and indeed has, its own rules and case law.
The practice regarding software patent before the European Patent Office is however significant since the so-called "European patents" are examined and may be opposed according to the rules laid on the European Patent Convention.
Although it is widely misbelieved that software patents have been granted by the EPO only recently, thousands of patents related have been granted (rightly or wrongly) since the EPC entered into force. For instance from 1977 to 1994 only, about 11,000 software-related patents were granted by the EPO. Well-known article 52(2) only excludes for instance methods for performing mental acts, mathematical methods and programs for computer as such. Products and processes including such subject-matter and expressed in terms of their technical features and which provides a technical effect are not considered as being excluded as such (see for instance VICOM decision of 1984).
Methods which describe a process which can be implemented without using
forces of nature are pure intellectual methods, for example algorithms,
are claimed in software patents. Very often, what is monopolized this way is not even a simple method but the pure idea that something could be done, whatever means are used.
Since such methods are very generic, the scope of such patents is often very wide and they are very hard to find using keyword searches and there is no classification for them, thus they are applied for in the language of some field. A computer does not even need to be mentioned in the patent, the description could even refer to traditional machines or electronic circuits; what counts is how the claims are written and if they do not describe new teachings of forces of nature, the patent can be described as software patent.
Since there is no standardized language enforced by the patent offices to describe pure ideas, patent search quality in this area is very low and this is not only a problem for the patent office's patent searches in the course of examination of the patent before granting it but also in private patent searches and litigation.
Software patents are very controversial. For many decades, patent offices around the world rejected most applications for software patents. In Europe, the European Patent Convention states that " programss for computers" are excluded from the patent system "as such". The meaning of "as such" in this context was clear for decades, but recently the European Patent Office spontanously (without change of the Convention or any political signal) changed it's interpretation from "as long as the program is the claim itself" to "as the text of the program". This is strongly opposed of many european software companies, developers and users.
The exclusion of software from patentability did not suit the interests of many patent professionals and certain computer manufacturers (such as IBM), which already were used to getting patent protection for their hardware but continued to seek routes to exclusive rights over algorithms and general software which they started to sell independently of the hardware. Gradually, cases began to appear in various jurisdictions (such as the United States, Japan and Australia), holding that software could be patented in various ways. The European Patent Office (responsible for granting European patents, and separate from the European Union) decided that it could grant patents on software using a politically controversial interpretation of the European Patent Convention.
Had the story remained typical of the history of intellectual property laws, the alignment of intention between key corporations (especially IBM and Microsoft) and the patent offices of the US, Europe, and Japan, would soon have lead to mandatory software patents under international law.
At the present moment, however, armed with evidence suggesting that software patents are likely to be economically harmful, coalitions of interest groups including the free software and open source movement and software firms without large patent portfolios are attempting to reverse the trend of patent expansionism. This conflict has been played out over the EU Directive on the Patentability of Computer-Implemented Inventions.
However, there remain many opponents of software patents, including an overwhelming majority of professional software developers.
For example, Burton Systems Software conducted a survey of professional programmers, and found that by a margin of 79.6% to 8.2% (10:1), computer programmers said that granting patents on computer software impedes, rather than promotes, software development (the remaining 12.2% were undecided). By 59.2% to 26.5% (2:1), most went even further, saying that software patents should be abolished outright.
Opponents of software patents argue against them for a diverse range of reasons. Here are some of the reasons opponents give for opposing software patents:
Most software development companies in the US have decided to acquire software patents,
even if they oppose the granting of them. Their motives include acquiring a patent before someone else does, or forcing competitors who acquire patents on obvious approaches to cross-license with them. Often these patents are only used defensively, e.g., they are only used against someone who first sues the company. Some organizations and licenses have formalized a nonaggression policy (a policy of never pursuing or profiting from aggressive software patent suits) and/or of mutual defense (in which a pool agree to this). Such systems, however, provide little defense to individual developers or small businesses, and it is unclear if they will prevail once companies come into financial hardship, needing patent revenues to persist. Often a patent can be worked around once the patent is known, but this can be a significant hardship if there is a significant amount of data in a format requiring the use of the patented algorithm.
A recent concern is the role of patents in the standards process. Some standards bodies have no patent policy; thus, it is possible for a member to convince a standards body to make certain technologies required by a standard while at the same trying to get a patent on that technology. As a result, many standards bodies (such as W3C) are now requiring their members to promise to grant either reasonable and non-discriminatory (RAND) or even royalty-free licenses on their patented technology that is incorporated into the standard.
See also: List of notorious software patents
Categories
Patents potentially including software
Patents including software
Patents on source code or algorithms
Patentability of software
In the US
In Europe
European Patent Convention
Main article: Software patents under the European Patent ConventionControversy
Opposition to Software Patents
Innovation
Economics
Obviousness
Litigation Culture
Submarine patents
Software patents tend to be opposed by individual software developers, who view software patents as a risk to their livelihood and are a high risk to SMEs.: if enough patents are granted, they will not be able to sell their software. Some large software companies also oppose patents, fearing that they will be sued for implementing obvious techniques, resulting in continuous payments to avoid court costs or steep fees for court battles. Well-known opponents of software patents include Richard Stallman (author of the gcc compiler), Dan Bricklin (inventor of the spreadsheet), Donald Knuth (an expert on computer algorithms and the author of the TeX typesetting software), Hartmut Pilch of FFII, Eurolinux Alliance, Lawrence Lessig, Mitch Kapor, Michel Rocard (former Prime Minister of France), Adobe and Oracle.Dealing with Software Patents
References & Resources
Legal Resources
Groups against software patents
Statements of Officials
As of 2004, the current position of the French executed (which changed hands since the above remark) is unclear.Groups in favor of software patents
Neutral resources
Manipulative resources
Discussion lists