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Software patents are a type of intellectual property and one of many legal aspects of computing. There is intense debate as to what extent such patents should be granted, see Software patent debate.
Definition
FOLDOC provides a general definition of a software patent as "A patent intended to prevent others from using some programming technique".
Software patents and 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 much stronger restrictive powers. It covers the invention itself, independently of any implementation in code. Thus usually reimplementing a program will avoid copyright infringment, but not patent infringement. Like all patents, software inventions are covered even if they are independently developed by other developers.
A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringment, including triple damages in the USA if the infringement is considered deliberate.
Most patents expire 20 years after filing (provided the maintenance or renewal fees are paid), while currently copyright lasts for the life of the author plus 70 years in the US (Sonny Bono Copyright Term Extension Act) and the EU. Similar terms based on the life of the author are in force in almost all other countries.
History
Computers powerful enough to run complex software have existed since the 1950s. However, 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 recent expansion of the internet and e-commerce has led to many patents being applied for and being granted for related software and business methods. There have been several successful enforcement trials in the USA.
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 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 the 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
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". (whatever that means) 1
A piece of code relating solely to the "processing, handling and presentation of information" 2
A piece of code with no "technical effect" (depending in turn on how one chooses to define "technical") 3
A piece of code as an abstract listing, not actually running on a programmable device; (Ie. "Software" that does not run on a computer. Used to be frequently argued before the EPO and other fora; this construction was explicitly rejected by the EU directive in article 4a.)
A piece of code with merely literary merit, rather than any identifiable functional benefits. (Because such functional benefits would be technical, and therefore should be patentable subject matter, according to supporters of broader definitions of CII patentability.)
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"). 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.
Computer-implemented invention
The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning.
Litigation
Several successful litigations show that software patents are enforceable in the USA. For example, Amazon succesfully sued Barnes and Noble over its one click patent, and Eolas was awarded $565 million from Microsoft. See List of software patents for more examples.
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.
Practical effects of software patents
Patenting software has become popular. This is difficult to quantify but as an indication as at January 2005 Microsoft alone has 6,130 issued patents which are presumably mainly software patents (US PTO Search). Microsoft expects to file 3,000 new applications this year. IBM received 3,415 patents in 2003 but many of these do not relate to software.
A new line of business has emerged that mainly focusses on obtaining and enforcing software patent rights rather than building and marketing usable software systems. Some companies such as Intellectual Ventures have the backing of large corporations while others such as Acacia Technologies are independently enforcing patents. High prices have been paid for software patent portfolios, eg. Commerce One.
The inventive step required for new software patents appears to be quite low. This makes it relatively easy to obtain a software patent. The quality of assesment also seems to be quite low, with well known prior art often ignored. This has resulted in some software patents being rejected upon re-examination, eg. the Microsoft FAT Patent File Allocation Table#FAT licensing.
There are several economic studies that assess whether software patents actually encourage or discourage innovation.
It now seems likely that software will continue to be patentable in the USA but not in Europe. This suggests that there will be software products that are available in Europe but not in the USA.
See also
List of software patents
TRIPS Agreement
Patent Cooperation Treaty
European Patent Convention
U.S. patent law
Business method patent
External links
Economic studies
Notes
Category:Patent law
Category:Computer law
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