Software patent
A software patent is a patent on a piece of software, such as a computer program, library, user interface, or algorithm. The validity of these patents can be difficult to evaluate, as software is often at once a product of engineering, something typically eligible for patents, and an abstract concept, which is typically not. This gray area, along with the difficulty of patent evaluation for intangible, technical works such as libraries and algorithms, makes software patents a frequent subject of controversy and litigation.
Different jurisdictions have radically different policies concerning software patents, including a blanket ban, no restrictions, or attempts to distinguish between purely mathematical constructs and "embodiments" of these constructs. For example, an algorithm itself may be judged unpatentable, but its use in software judged patentable.
Background
A patent is a set of exclusionary rights granted by a state to a patent holder for a limited period of time, usually 20 years. These rights are granted to patent applicants in exchange for their disclosure of the inventions. Once a patent is granted in a given country, no person may make, use, sell or import/export the claimed invention in that country without the permission of the patent holder. Permission, where granted, is typically in the form of a license which conditions are set by the patent owner: it may be free or in return for a royalty payment or lump sum fee.Patents are territorial in nature. To obtain a patent, inventors must file patent applications in each and every country in which they want a patent. For example, separate applications must be filed in Japan, China, the United States and India if the applicant wishes to obtain patents in those countries. However, some regional offices exist, such as the European Patent Office, which act as supranational bodies with the power to grant patents which can then be brought into effect in the member states, and an international procedure also exists for filing a single international application under the Patent Cooperation Treaty, which can then give rise to patent protection in most countries.
These different countries and regional offices have different standards for granting patents. This is particularly true of software or computer-implemented inventions, especially where the software is implementing a business method.
Early example of a software patent
On 21 May 1962, a British patent application entitled "A Computer Arranged for the Automatic Solution of Linear Programming Problems" was filed. The invention was concerned with efficient memory management for the simplex algorithm, and could be implemented by purely software means. The patent struggled to establish that it represented a 'vendible product'. "The focus of attention shifted to look at the relationship between the computer program and the programmed computer". The patent was granted on August 17, 1966, and seems to be one of the first software patents, establishing the principle that the computer program itself was unpatentable and therefore covered by copyright law, while the computer program embedded in hardware was potentially patentable.Jurisdictions
Most countries place some limits on the patenting of inventions involving software, but there is no one legal definition of a software patent. For example, U.S. patent law excludes "abstract ideas", and this has been used to refuse some patents involving software. In Europe, "computer programs as such" are excluded from patentability, thus European Patent Office policy is consequently that a program for a computer is not patentable if it does not have the potential to cause a "technical effect" which is by now understood as a material effect. Substantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions.Software patents under multilateral treaties:
- Software patents under TRIPs Agreement
- Software patents under the European Patent Convention
- Computer programs and the Patent Cooperation Treaty
- Software patents under United States patent law
- Software patents under United Kingdom patent law
Australia
In a decision of the Federal Court of Australia, on the patentability of an improved method of representing curved images in computer graphics displays, it was held that the application of selected mathematical methods to computers may involve steps which are foreign to the normal use of computers and hence amount to a manner of manufacture. In another unanimous decision by the Full Federal Court of Australia, an invention for methods of storing and retrieving Chinese characters to perform word processing was held to be an artificially created state of affairs and consequently within the concept of a manner of manufacture.
Nevertheless, in a recent decision on the patentability of a computer implemented method of generating an index based on selection and weighing of data based on certain criterion, the Full Federal Court of Australia reaffirmed that mere methods, schemes and plans are not manners of manufacture. The Full Court went on to hold that the use of a computer to implement a scheme did not contribute to the invention or the artificial effect of the invention. The subject matter of the invention was held to be an abstract idea and not a manner of manufacture within the meaning of the term in the Patents Act. The same Full Federal Court in another decision regarding the patentability of an invention regarding a method and system for assessing an individual's competency in relation to certain criterion, reiterated that a business method or mere scheme were per se are not patentable.
In principle, computer software is still a valid patentable subject matter in Australia. But, in circumstances where patents have been sought over software to merely implement abstract ideas or business methods, the courts and the Commissioner of Patents have resisted granting patent protection to such applications both as a matter of statutory interpretation and policy.
Canada
In Canada, courts have held that the use of a computer alone neither lends, nor reduces patentability of an invention. However, it is the position of the Canadian Patent Office that where a computer is an "essential element" of a patent's claims, the claimed invention is generally patentable subject matter.China
In China, the starting time of software patent is relatively late. Before 2006, software patents were basically not granted, and software and hardware had to be combined when applying for a patent. With the development of network technology and software technology, China's patent examination system has been constantly updated. Recently, the design idea of the software itself has been allowed to apply for patent separately, instead of requiring to be combined with hardware. However, software patent writing requirements are relatively high.Software patents can be written as either a product or a method, depending on the standards of review. However, no matter what form it is written in, it is difficult to highlight the creativity of the scheme, which requires specific case analysis.
Software that can be patented mainly includes :
Industrial control software, such as controlling the movement of mechanical equipment;
Software to improve the internal performance of the computer, such as a software can improve the virtual memory of the computer;
External technical data processing software, such as digital camera image processing software.
It is fair to say that a considerable proportion of software belongs to category.
The patent protection measures can be seen in the patent law and the regulations on the protection of computer software.
Europe
Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the European Patent Convention came into force in the late 1970s. excludes "programs for computers" from patentability to the extent that a patent application relates to a computer program "as such". This has been interpreted to mean that any invention that makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if that technical problem is solved by running a computer program. When the EPO examines a patent application with questionable subject matter eligibility, their approach is to simply disregard any ineligible portions or aspects and evaluate the rest. This is notably different from the U.S. approach.Computer-implemented inventions that only solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.
A summary of the developments concerning patentability of computer programs under the European Patent Convention is given in as a response of the Enlarged Board of Appeal to questions filed by the President of the European Patent Office according to.
Concerns have been raised by free software campaigners, such as the Free Software Foundation, that the Unified Patent Court will be much more open to patents generally and software patents in particular.