Software patent
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.
Debate
The extent to which it is desirable to limit or allow the patentability of software is the subject of ongoing legal, academic and political dispute. This is reviewed in the associated article Software patent debate.
Currently, a particularly intense focus of discussion 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.
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 harmonised, even though all EU states are members of the European Patent Convention. Detailed interpretation of the substantive law still varies to some extent from state to state. Harmonisation of these differences was one reason that the EU Commission proposed a Directive on the Patentability of Computer-Implemented Inventions, the terms of which have become a cock-pit of debate as to what should and what should not be patentable.
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
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 rights and wrongs of "software patentabilty" may vary considerably depending on what definition of the term is used.
Software patent
There is no universally accepted definition of the expression "software patent" and no legal text defines what exactly is a software patent and what it is not.
Computer-implemented invention
For a broad definition, software patent is sometimes taken to categorise any patented invention which could be fully specified by the code of a computer program operating particular known conventional hardware.
This is close to the definition of "computer-implemented invention" which was put forward by the European Commission, 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]
The terms "software-enabled invention" and "software-operated invention" have also been used.
"Pure" software patent
However, 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" (however one wishes 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;
Disguised software patents
In some jurisdictions 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 (e.g. "means for controlling"). Additionally, in some jurisdictions 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. This creates further implications for which reasonably might or might not be called a software patent.