Software Patent Definitions Ambiguities Scope

It is fair to say that when different people refer to "software patents", they may often mean very different things; and that individual views on the "patentability of software" may vary considerably depending on what definition of the term is understood.

1.1 Software patent

One potential definition of software patent would be "a patent which can be infringed by software". FOLDOC, for example, defines software patent as "A patent intended to prevent others from using some programming technique".

1.1.1 Ambiguities: scope

There is no legal text that defines what exactly is a software patent and what is not; and no universally accepted definition of the expression.

1.1.2 Ambiguities: software implementations of patented hardware

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 (e.g. "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 (i.e. to substitute for) a non-software element, making even more difficult to draw the boundary.

1.2 Computer-implemented invention

The term "computer-implemented invention" was put forward by the European Commission and 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", "software-related invention", and "software-operated invention" have also been used similarly.

1.3 "Pure" software patent

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").

2 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 UnionFor other uses, see EU (disambiguation). The European Union or EU is a supranational organisation of 25 European states. It was established with that name by the Treaty on European Union (commonly known as the Maastricht Treaty) in 1992 but many aspects o 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 multilateralMultilateralism is an international relations term that refers to multiple countries working in concert. Most international organizations are multilateral in nature such as the United Nations and the World Trade Organization. The main proponents of multil treatiesA treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. Treaties can be called by many names: treaties, international agreements, protocols, covenants, conventions,:

Software patents under TRIPs AgreementSee discussion under EU_Directive_on_the_Patentability_of_Computer-Implemented_Inventions#Software_Patents_and_International_Treaties.
Software patents under Patent Cooperation Treaty
Software patents under the European Patent ConventionEven though the European Patent Convention and its Article 52 excludes the patentability of programs for computers ''as such that does not mean that all inventions including some software are de jure not patentable. Patents which qualify as software paten

Software patents under national laws:

Software patents under US patent lawThis article relates to the patentability of software under US patent law . 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 ration
Software patents under UK patent law
Software patents under German patent law

2.1 Software patents and software copyright

Under international agreements, any software written is automatically protected by copyright. This forbids the direct copying of any part of the program code. Applying for, and being granted a patent gives much stronger protection. The invention achieved by the code may then be protected, and others who use the same invention may be sued to stop, or forced to licence the patent (even if they have come up with and developed the idea independently).

This gives the patent-owner much stronger protection for his invention. But it also means he has been granted a state-backed monopoly, and the chance to close out all competition, if the patented invention cannot be avoided. The question of whether in the area of software this is on balance a good thing or a bad thing for society has attracted intense and heated legal, academic and political disagreement. This is reviewed in the associated article Software patent debate.

A particularly active focus of the debate at the present time 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.

3 See also

Patent law Computer law

<Hide>

Home > Software patent

1 Definitions