Software patent

From Free net encyclopedia

Software patents and patents on computer-implemented inventions (CII) are a class of patents and one of many legal aspects of computing. There is intense debate as to what extent such patents should be granted, if any.

The Free On-line Dictionary of Computing provides a general definition of a "software patent" as "a patent intended to prevent others from using some programming technique", while the European Patent Office (EPO) provides a general definition of a "computer-implemented invention":

"an expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie the novel features of the claimed invention are realised by means of a program or programs" [1]

or, expressed in other words,

"an invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program" [2].

1 Software patents vs copyright
2 History
3 Law
4 Practical effects of software patents
5 See also
6 Notes
7 External links
- 7.1 Economic studies

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Software patents vs 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 stronger restrictive power. It covers the programming method itself, independently of any implementation in code. Usually, reimplementing a program will avoid copyright infringement, but not patent infringement. Like all patents, software patents are enforceable regardless of whether the competitors were aware of the patent (patent applications are kept secret for at least 18 months) and the software was completely independently developed.

A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringement, including triple damages in the USA if the infringement is considered deliberate, which means knowing of the patent but not licensing it (even under the assumption it was invalid).

As laid out in TRIPS, patents are required to last 20 years after filing, provided the maintenance or renewal fees are paid.

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History

The first software patent ever granted is probably a patent for a "computer having slow and quick access storage, when programmed to solve a linear programming problem by an iterative algorithm, the iterative algorithm being such that (...)" applied for in 1962 by British Petroleum Company ([3], see end of page 3). The patent relates to solving simultaneous linear equations.

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 USPTO maintained this position, that software was in effect a mathematical algorithm, and therefore not patentable into the 1980's. The position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could. This ruling wasn't as straightforward as many would have liked, forcing many electronic device makers into the courts to establish that their inventions were in fact patentable. [4]

Due to different treatment of federal patent rights in different parts of the country, in 1982 the U.S. Congress created a new court (the Federal Circuit) to hear patent cases. The new circuit rejected rulings from some parts of the country, and nationalized others. For example, the court made patents generally easier to uphold by presuming patents were valid unless proved invalid and weakening the defence of nonobviousness. This court allowed issues, such as patentability of software, to be treated uniformly throughout the US without reaching the Supreme Court. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines. See Software patents under United States patent law.

In Europe, the EPO (and other national patent offices) has been issuing many software patents since the 1980s, although (or since) Article 52 of the European Patent Convention excludes "programs for computers" (Art. 52(2)) but only to the extent it relates to activies "as such" (Art. 52(3)). See Software patents under the European Patent Convention.

In India, a clause to include software patents was quashed by the Indian Parliament in April 2005.

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.

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Law

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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 2002, in order to harmonize the national laws a step further, the EU Commission proposed a Directive on the patentability of computer-implemented inventions, but settling the exact terms of the Directive has proven highly controversial. In 2003, the European Parliament deeply amended the original draft from the Commission. Two years later, the Council of the European Union (i.e. national government ministers) mostly reinstated the original text, but the text was eventually rejected by the Parliament on July 6, 2005. The proposed directive will not become law.

Software patents under multilateral treaties:

Software patents under national laws:

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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". Template:Fn
A piece of code relating solely to the "processing, handling and presentation of information" Template:Fn
A piece of code with no "technical effect" (depending in turn on how one chooses to define "technical") Template:Fn
A piece of code as an abstract listing, not actually running on a programmable device Template:Fn
A piece of code with merely literary merit, rather than any identifiable functional benefits Template:Fn

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"). The expression "computer-implementable inventions" has been coined to refer to this reality.

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.

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Software patents specifics

Apart from generally accepted and well known advantages of the ordinary patents, software patents have several specific features, creating unwanted effects ([5]). The patent supporters suggest various methods to minimize such effects.

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Patents against compatibility

Patenting data exchanging standards frequently forces another programming group to introduce an alternative format. For instance, the PNG was introduced to avoid the GIF patent problems, or the OGG was introduced to avoid the MP3 patent problems. If this new suggested format is patented again, the final result may be a large number of incompatible formats. Creating such formats and supporting them costs money, creates inconvenience to users and even threatens to split the Internet into several partially incompatible sub-networks (ASF and non-ASF, for instance).

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Defensive patents

Some large companies (Oracle Corporation, Red Hat) have clearly said that they do not need software patents to prevent others from using their ideas (the main purpose of the patent), but must accumulate such patents with the purpose of defense against the possible attack. This means that such companies are forced to buy the work of the patent management institution, rather than investing that money into software improvement.

Taking these and other effects into consideration, the EU Parliament rejected the proposed Software Patent Directive in July 2005 with the vast majority of votes.

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Computer-implemented invention

The term "computer-implemented invention" was put forward by the European Commission, based on an expression used by the European Patent Office [6], and proposed 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." [7] The term has been criticized as a politically motived obfuscation manoeuver [8]. The German chancellor Schröder is quoted as saying "the manuscript is titled with 'software patents' - wait, I may no longer say that - well the 'protection of computer-implemented inventions'" [9].

The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning.

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Litigation

Several successful litigations show that software patents are enforceable in the USA. For example, 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.

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Practical effects of software patents

Template:Cleanup-date

Patenting software is widespread in the US. The number of patents is difficult to quantify but as an indication as of 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.

Most large software companies have cross-licencing agreements in which each agrees not to sue the other over patent infringements. For example, Microsoft has agreements with IBM, Sun Microsystems, SAP, Hewlett-Packard, Siemens AG, Cisco and recently Autodesk (IDG News Service). Microsoft cross-licensed its patents with Sun, despite being direct competitors, and with Autodesk even though Autodesk has far fewer patents than Microsoft. It appears that large companies prefer to avoid expensive and uncertain litigation rather than attempt to enforce patents against other large companies. Indeed, being able to negotiate such agreements is a major reason that companies file "defensive" patents.

Some large companies enforce patents. For example, in the early 1990s IBM started an aggressive licencing program which generated over $2 billion a few years later (Newsweek Article). Licences are often charged as a cost per unit sold or at a few percent of gross sales (not profit), and this license "tax" can become a major burden when several different organizations claim patent violations.

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. Walker Digital in Stamford, CT has filed for hundreds of patents in hopes of forcing infringers to take a license from them. Some people who are against software patents call this "patent trolling".

Many free software / open source developers fear that software patents will prevent them creating software. Such projects generally have no defensive patent portfolio of their own, no mechanism to pay royalty fees, and have smaller budgets. This has affected several projects (FFII Effects of Patents). Several companies (eg. IBM) have licenced parts of their patent portfolio to open source products or more generally, particularly to encourage standards. However, this is a tiny fraction of all software patents, and does not give the open source community a defensive patent portfolio to use to negotiate cross-licencing agreements. Novell has gone further by committing to actively use its patent portfolio against companies that bring actions against certain open source products.

The "inventive step" requirement for software patents is viewed by some as being quite low. This allegedly makes it relatively easy to obtain a software patent. The quality of assessment 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.

id Software and its head John Carmack pursue a strategy of avoiding software patents at all. In Carmack's words "The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."

Ironically, Carmack found himself on the receiving end of a patent dispute when the programming technique known as "Carmack's Reverse" turned out to be patented by Creative Labs! Creative proceeded to use this patent to their advantage by forcing the game Doom3 to more closely support Creative products on threat of litigation. It has since been discovered that Carmack himself had prior art in the source code of Quake3 and id Software would have likely won any litigation and invalidated the patent at the expense of Doom3 being delayed, which they could not afford. Clearly, this particular software patent (US 6,384,822) had the effect of discouraging independent discovery.

Software engineers rarely search patent databases and applications looking for interesting new patents. This is because of 1. the lack of inventive step in many software patents, 2. the obscure language with which software patents are described, and 3. the risk of being assessed for triple damages for knowingly infringing one (Federal Trade Commission). Many infringements are for independent inventions, which many programmers lament their loss of freedom to innovate. A programming problem is usually solved through logic and application of mathematical laws, not invention, making risky ground for software companies.

There are several Economic Studies that assess whether software patents actually encourage or discourage innovation.

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Notes

Template:Fnb Amendment 23 introduced on September 2003 by the European Parliament to the proposed Directive on the patentability of computer-implemented inventions [10], "Dispositions program decision" (BGH 22/6/1976), Nordic Patent Law treaty.
Template:Fnb Amendments 23, 24, 25, 39 and 40 introduced by the European Parliament to the proposed Directive on the Patentability of CII [11]
Template:Fnb Decision T 59/93 of the Boards of Appeal of the European Patent Office, Reasons, point 3.4 [12]
Template:Fnb i.e. "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.
Template:Fnb Because such functional benefits would be technical, and therefore should be patentable subject matter, according to supporters of broader definitions of CII patentability.