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Software patent

A software patent is a patent on an invention implemented in software.

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 stated that there could be no patents on software "as such".

The exclusion of software from patentability did not suit the interests of many patent professionals and certain software firms, who continued to seek routes to exclusive rights over algorithms and more general software systems. 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 movements, many software firms without large patent portfolios, and many non-software businesses, 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.

Table of contents
1 History and Rationale for Software Patents
2 Opposition to Software Patents
3 Dealing with Software Patents
4 Notorious Software Patents
5 References & Resources

History and Rationale for Software Patents

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 computer software was used. The invention in this case involved a method for determining how rubber should be heated to be best cured, using a computer. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process for molding rubber, and hence was patentable.

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 infringment 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.

Opposition to Software Patents

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:

Software patents tend to be opposed by individual software developers, who view software patents as a risk to their livelihood: if enough patents are granted, they will not be able to practically develop 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, Eurolinux Alliance, Mitch Kapor, Michel Rocard (former Prime Minister of France), Adobe and Oracle.

Dealing with Software Patents

Most software development companies 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 techonology. 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.

Notorious Software Patents

Notorious software patents include:

References & Resources

Legal Resources

Groups against software patents

Groups in favor of software patents

Neutral resources