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A software patent is a
patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
on a piece of
software Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work. At the lowest programming level, executable code consist ...
, such as a
computer program A computer program is a sequence or set of instructions in a programming language for a computer to Execution (computing), execute. Computer programs are one component of software, which also includes software documentation, documentation and oth ...
,
libraries A library is a collection of Document, materials, books or media that are accessible for use and not just for display purposes. A library provides physical (hard copies) or electronic media, digital access (soft copies) materials, and may be a ...
,
user interface In the industrial design field of human–computer interaction, a user interface (UI) is the space where interactions between humans and machines occur. The goal of this interaction is to allow effective operation and control of the machine f ...
, or
algorithm In mathematics and computer science, an algorithm () is a finite sequence of rigorous instructions, typically used to solve a class of specific problems or to perform a computation. Algorithms are used as specifications for performing ...
.


Background

A patent is a set of exclusionary rights granted by a
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
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 A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...
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 Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the n ...
,
China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
, the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
and
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
if the applicant wishes to obtain patents in those countries. However, some regional offices exist, such as the
European Patent Office The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation
(EPO), 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 (PCT), 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 Linear programming (LP), also called linear optimization, is a method to achieve the best outcome (such as maximum profit or lowest cost) in a mathematical model whose requirements are represented by linear relationships. Linear programming is ...
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 was granted on August 17, 1966 and seems to be one of the first software patents.


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 The European Patent Office (EPO) is one of the two organs of the European Patent Organisation (EPOrg), the other being the Administrative Council. The EPO acts as executive body for the organisation
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 (a "transformation of nature"). Substantive law regarding the patentability of software and computer-implemented inventions, and
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
interpreting the legal provisions, are different under different jurisdictions. Software patents under multilateral
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
: * Software patents under TRIPs Agreement * Software patents under the European Patent Convention *
Computer programs and the Patent Cooperation Treaty There are two provisions in the regulations annexed to the Patent Cooperation Treaty (PCT) that relate to the search and examination of patent applications concerning computer programs. These two provisions are present in the PCT, which does not ...
Software patents under national laws: * Software patents under United States patent law * Software patents under United Kingdom patent law


Armenia

Starting July 1, 2021, Armenia becomes the second country in the world, after the US, to allow software patenting under Armenia's Ministry of Economy.


Australia

In Australia, there is no particular exclusion for patents relating to software. The subject matter of an invention is patentable in Australia, if it is a ''manner of manufacture'' within the meaning of section 6 of the Statute of Monopolies. The High Court of Australia has refrained from ruling on the precise definition of manner of manufacture stating that any such attempt is bound to fail for the policy reason of encouraging national development in fields that may be unpredictable.. In assessing whether an invention is a manner of manufacture, the High Court has relied on the inquiry of whether the subject of the claims defining the invention has as its end result an ''artificially created state of affairs''. 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 Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
, 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 (but is not limited to): (1) Industrial control software, such as controlling the movement of mechanical equipment; (2) Software to improve the internal performance of the computer, such as a software can improve the virtual memory of the computer; (3) 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 (3). 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 The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to ...
(EPC) came into force in the late 1970s. excludes "programs for computers" from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program "as such" (Art. 52(3)). 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. 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 (see T 258/03). 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 (see G 3/08) as a response of the Enlarged Board of Appeal to questions filed by the President of the European Patent Office according to Art. 112(1)b) EPC. Concerns have been raised that the new (2015)
Unified Patent Court The Unified Patent Court (UPC) is a common patent court open for participation of member states of the European Union, and created by the "Agreement on a Unified Patent Court" (UPC Agreement or UPCA), which is provisionally applicable since 19 ...
will be much more open to patents generally and software patents in particular.


Germany

In April 2013, the
German Parliament The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Commons ...
adopted a joint motion "against the growing trend of patent offices to grant patents on software programs".


United Kingdom

United Kingdom patent law is interpreted to have the same effect as the
European Patent Convention The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to ...
such that "programs for computers" are excluded from patentability to the extent that a patent application relates to a computer program "as such". Current case law in the UK states that an (alleged) invention will only be regarded as an invention if it provides a contribution that is not excluded and that is also technical. A computer program implementing a business process is therefore not an invention, but a computer program implementing an industrial process may well be.


India

In
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
, a clause to include software patents was quashed by the
Indian Parliament The Parliament of India (IAST: ) is the supreme legislative body of the Republic of India. It is a bicameral legislature composed of the president of India and two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of t ...
in April 2005. However, following publication of the new guidelines on the examination of computer-related inventions on 19 February 2016, the Office of the Controller General of Patents, Designs and Trade marks accepts applications for software patents, as long as the software is claimed in conjunction with a novel hardware. On 30 June 2017, revised guidelines on the examination of computer related inventions were published. This 2017 guidelines provides clarity on patentability of software invention in India, i.e., the claimed computer-related invention needs to be ascertained whether it is of a technical nature involving technical advancement as compared to the existing knowledge or having economic significance or both, and is not subject to exclusion under Section 3 of the Patents Act. In 2019, the Court observed, Patent applications in these fields would have to be examined to see if they result in a “technical contribution”, it added. Further elaborating on the usage of the term ‘per se’ in Section 3(k), the Court said, With respect to the term per se, the joint parliamentary committee had expressed the following view:


Japan

Software-related inventions are patentable. To qualify as an invention, however, there must be "a creation of technical ideas utilizing a law of nature" although this requirement is typically met by "concretely realising the information processing performed by the software by using hardware resources". Software-related inventions may be considered obvious if they involve the application of an operation known in other fields, the addition of a commonly known means or replacement by equivalent, the implementation in software of functions which were previously performed by hardware, or the systematisation of known human transactions. In 1999, the allowance rate for business method patents at the
Japan Patent Office The is a Japanese governmental agency in charge of industrial property right affairs, under the Ministry of Economy, Trade and Industry. The Japan Patent Office is located in Kasumigaseki, Chiyoda, Tokyo and is one of the world's largest pat ...
(JPO) reached an all-time high of roughly 35 percent. Subsequently, the JPO experienced a surge in business method patent filings. This surge was met with a dramatic decrease in the average grant rate of business method patents during the following six years; it lingered around 8 percent between 2003 and 2006 (8 percent is extremely low in comparison to the average of 50 percent across all technical fields). Since 2006, the average grant rate for business method patents has risen to the current rate of roughly 25 percent.


New Zealand

In
New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...
computer programs are excluded from patentability under the Patents Act 2013, but guidelines permitting embedded software were added since the initial Patents Bill. From 2013 computer programs 'as such' are excluded from patentability. The as such wording rules out only those software based patents where novelty lies solely in the software. Similar to Europe.


Philippines

In the
Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
, "schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers" are non-patentable inventions under Sec. 22.2 of Republic Act No. 8293, otherwise known as the "Intellectual Property Code of the Philippines".


Russian Federation

In the
Russian Federation Russia (, , ), or the Russian Federation, is a transcontinental country spanning Eastern Europe and Northern Asia. It is the largest country in the world, with its internationally recognised territory covering , and encompassing one-eig ...
according to article #1350 of the Civil Code of the Russian Federation the following do not qualify as inventions: #discoveries; #scientific theories and mathematical methods; #solutions concerning only the appearance of products and aimed at meeting the aesthetic needs; #the rules and methods of games, intellectual or economic activities; #computer programs; #solutions consisting only in the presentation of information. However, the article provides for that the patentability of these objects is excluded only in the case when the application for the grant of a patent for an invention concerns these objects ''as such''.


South Africa

In
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...
, "a program for a computer" is excluded from recognition as an invention by section 25(2) of the Patents Act. However, this restriction applies "only to the extent to which a patent or an application for a patent relates to that thing as such" and should not prevent, for example, a product, process, or method which may be implemented on a computer from being an invention, provided that the requirements of novelty and inventiveness are met.


South Korea

In
South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korea, Korean Peninsula and sharing a Korean Demilitarized Zone, land border with North Korea. Its western border is formed ...
, software is considered patentable and many patents directed towards "computer programs" have been issued. In 2006,
Microsoft Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washi ...
's sales of its "Office" suite were jeopardized due to a possible patent infringement. A ruling by the Supreme Court of Korea found that patents directed towards automatic language translation within software programs were valid and possibly violated by its software.


Thailand

As like as 52(2) of the European Patent Convention (EPC), section 9 of the Thai Patent Act 1999 states that Thai patent law does not include software (or computer program) from patentability because the computer software is not considered as an “invention”, in which it is not the idea of the product itself. Hence, the software is considered as the manual or instruction that was controlled by users to perform the tasks. A software patents law in Thailand has been controversial
debates Debate is a process that involves formal discourse on a particular topic, often including a moderator and audience. In a debate, arguments are put forward for often opposing viewpoints. Debates have historically occurred in public meetings, a ...
among the economists and national developers’ overtime since there were two significant developments in the international patent law; (1) the European Union's attempt to harmonize national patent laws by the Proposal for a Directive of the European Parliament and Council on the patentability of computer-implemented inventions,Pitiyasak, Saravuth. "Thailand Debates Software Patents." ''Managing Intellectual Property''.123 (2002): 62-4. ''ProQuest.'' Web. 11 Apr. 2020. and (2) the US court decision to expand patent protection to business methods. The opinions are divided into two sides. Dr. Tangkitvanich, the IT specialist of Thailand Development Research Institute (TDRI), raised his concern that Thailand is not in a good stage for a software patent as there were several flaws in patent rights. For example, the business method prevention has high tendency to hinder the growth in innovations especially for the infant software companies. Moreover, the software patent may cause monopoly and innovation problems. “Monopoly will thwart innovations of new software products, particularly open-source software”, said by a group of Thai Economists. However, Dr. Hirapruk who is the Director of Software Park Thailand, on the other hand, provides his support on allowing the computer programs to be patentable: “Thailand had to provide a patent-right protection for computer software to ensure foreign high-tech investors that software producers' creativity would be secured from violations in Thailand”. As a result, Mr. Sribhibhadh, president of the Association of Thai Software Industry, emphasized that there will need to be a clear overview of the impact on the local industry if Thailand really had to fully implement the patent right protections.


United States

The
United States Patent and Trademark Office The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alex ...
has granted patents that may be referred to as software patents since at least the early 1970s. In Gottschalk v. Benson (1972), the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled that a patent for a process should not be allowed if it would "wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself", adding that "it is said that the decision precludes a patent for any program servicing a computer. We do not so hold." In 1981, the Supreme Court stated that "a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer" and a claim is patentable if it contains "a mathematical formula ndimplements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect". 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 The United States Court of Appeals for the Federal Circuit (in case citations, Fed. Cir. or C.A.F.C.) is a United States court of appeals that has special appellate jurisdiction over certain types of specialized cases in the U.S. federal court ...
) to hear patent cases. Following several landmark decisions by this court, by the early 1990s the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines stating that "A ''practical application'' of a computer-related invention is statutory subject matter. This requirement can be discerned from the variously phrased prohibitions against the patenting of abstract ideas, laws of nature or natural phenomena" (emphasis added). The emergence of the
Internet The Internet (or internet) is the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a '' network of networks'' that consists of private, p ...
and
e-commerce E-commerce (electronic commerce) is the activity of electronically buying or selling of products on online services or over the Internet. E-commerce draws on technologies such as mobile commerce, electronic funds transfer, supply chain manag ...
led to many patents being applied for and being granted for business methods implemented in software and the question of whether business methods are statutory subject matter is a separate issue from the question of whether software is. Critics of the Federal Circuit believe that the non-obviousness standard is partly responsible for the large increase in patents for software and business methods. There have been several successful enforcement trials in the United States, some of which are listed in the list of software patents article. An issue with software patent intellectual property rights is typically revolved around deciding whether the company or inventor owns it. As a matter of law, in the United States, the employee generally owns the IP right unless the employee's inventing skills or task to create the invention is the main specific hiring reason or a specific clause in the employment agreement assigning invention rights. A work for hire created after 1978 has
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
protection for 120 years from its creation date or 90 years from its publication date whichever comes first. Patent protection for software lasts 20 years.


Indonesia

In Indonesia, software cannot be protected by patents, until the implementation of the Law No. 13 Year 2016, Patent Law in Indonesia. To begin evaluation, it is necessary to distinguish whether or not the application is considered an invention. Under Law No. 14 Year 2001, Article 1 of Patent Law in Indonesia, application is considered as an invention if the activity is created to solve a particular conflict or problem in the technology sector. Furthermore, it can be executed in the medium of a new process or product or a developmental enhancement in a product or process. According to Law No. 14 Year 2001, Article 7 of Patent Law in Indonesia., an application can not be patented as an invention if the product or process contradicts or challenges the current regulations and rules, public order or ethics, and religious morality. In addition, if the application is treated as a method or theory in the scientific or mathematics, argued to be any type of living creatures, with the exception of micro-organisms, or is considered as an essential biological measure to produce plants or animals, the application is not a patentable invention. As software contains algorithms, it is deemed to be part of the field of mathematics; hence, software cannot be protected by patents in Indonesia. However, one way for the Indonesian Intellectual Property office to grant software patents in Indonesia is if the application has been patented in other nations, which have ratified the Patent Corporation Treaty (PCT). Therefore, in accordance to the regulations under the Patent Cooperation Treaty, a software will have a regional protection among the participating entities of World Intellectual Property Organization (WIPO). An important update was enacted on 26 August 2016, the Law No. 13 Year 2016, Patent Law in Indonesia. This update is geared to encourage innovation and growth by augmenting the number of patents within the public and private sector in Indonesia. This update proposes an extension of protection for simple patent, which grants application for patents for new improvements or inventions to existing processes. Intangible inventions can also be patented; under the former law, simple patent is restricted for tangible inventions, which has a positive implication for software patents in Indonesia. Furthermore, these changes provide more protection to the pharmaceutical industry and encourage public access to medical knowledge. This can boost new software ideas and processes within the healthcare and pharmaceutical sector. This update provides a stronger protection of traditional knowledge. In addition, a significant update is the usability of electronic filling and electronic media. Under this new law, application can be made electronically.


Purpose of patents

For the U.S., the purpose of patents is laid down in the constitutional clause that gives Congress the power 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;" (Article I, Section 8, Clause 8). For Europe, there is no similar definition. Commonly four patent justification theories are recognised, as laid down for instance by Machlup in 1958, which include justice to the inventor and benefit for society by rewarding inventors. Disclosure is required in return for the exclusive right, and disclosure may promote further development. However, the value of disclosure should not be overestimated: some inventions could not be kept secret otherwise, and patents also prohibit independent reinventions to be exploited. There is
debate Debate is a process that involves formal discourse on a particular topic, often including a moderator and audience. In a debate, arguments are put forward for often opposing viewpoints. Debates have historically occurred in public meetings, a ...
as to whether or not these aims are achieved with software patents.


Proposals

In seeking to find a balance, different countries have different policies as to where the boundary between patentable and non-patentable software should lie. In Europe, a number of different proposals for setting a boundary line were put forward during the debate concerning the proposed
Directive on the patentability of computer-implemented inventions The Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (Commission proposal COM(2002) 92), procedure number 2002/0047 (COD) was a proposal for a European Union (EU) di ...
, none of which were found acceptable by the various parties to the debate. Two particular suggestions for a hurdle that software must pass to be patentable include: * A computer program that utilises "controllable forces of nature to achieve predictable results". * A computer program which provides a "technical effect". In the US,
Ben Klemens Ben Klemens (born April 10, 1975) is an Australian economist, author, and co-host of the podcast 'Pod, Paper, Scissors'. He works for the US Treasury Department and was previously a nonresident fellow at the Brookings Institution's Center on Soci ...
, a Guest Scholar at the
Brookings Institution The Brookings Institution, often stylized as simply Brookings, is an American research group founded in 1916. Located on Think Tank Row in Washington, D.C., the organization conducts research and education in the social sciences, primarily in e ...
, proposed that patents should be granted only to inventions that include a physical component that is by itself nonobvious. This is based on Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
's ruling in the U.S. Supreme Court case of Diamond v. Diehr that stated that "... insignificant postsolution activity will not transform an unpatentable principle into a patentable process." By this rule, one would consider software loaded onto a stock PC to be an abstract algorithm with obvious postsolution activity, while a new circuit design implementing the logic would likely be a nonobvious physical device. Upholding an "insignificant postsolution activity" rule as per Justice Rehnquist's ruling would also eliminate most business method patents.


Obviousness

A common objection to software patents is that they relate to trivial inventions. A patent on an invention that many people would easily develop independently of one another should not, it is argued, be granted since this impedes development. Different countries have different ways of dealing with the question of
inventive step and non-obviousness The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, " he ...
in relation to software patents. Europe uses an 'Inventive step test'; see the Inventive step requirement in Europe and, for instance, T 258/03.


Criticism


Compatibility

There are a number of high-profile examples where the patenting of a data exchange standards forced another programming group to introduce an alternative format. For instance, the
Portable Network Graphics Portable Network Graphics (PNG, officially pronounced , colloquially pronounced ) is a raster-graphics file format that supports lossless data compression. PNG was developed as an improved, non-patented replacement for Graphics Interchange ...
(PNG) format was largely introduced to avoid the
Graphics Interchange Format The Graphics Interchange Format (GIF; or , see pronunciation) is a bitmap image format that was developed by a team at the online services provider CompuServe led by American computer scientist Steve Wilhite and released on 15 June 1987 ...
(GIF) patent problems, and Ogg
Vorbis Vorbis is a free and open-source software project headed by the Xiph.Org Foundation. The project produces an audio coding format and software reference encoder/decoder ( codec) for lossy audio compression. Vorbis is most commonly used in con ...
to avoid
MP3 MP3 (formally MPEG-1 Audio Layer III or MPEG-2 Audio Layer III) is a coding format for digital audio developed largely by the Fraunhofer Society in Germany, with support from other digital scientists in the United States and elsewhere. Origin ...
. If it is discovered that these new suggested formats are themselves covered by existing patents, the final result may be a large number of incompatible formats. Creating such formats and supporting them costs money and creates inconvenience to users.


Computer-implemented invention (CII)

Under the
European Patent Convention The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to ...
(EPC), and in particular its Article 52, " programs for computers" are not regarded as inventions for the purpose of granting European patents, but this exclusion from patentability only applies to the extent to which a European patent application or European patent relates to a computer program as such. As a result of this partial exclusion, and despite the fact that the EPO subjects patent applications in this field to a much stricter scrutiny when compared to their American counterpart, that does not mean that all
invention An invention is a unique or novel device, method, composition, idea or process. An invention may be an improvement upon a machine, product, or process for increasing efficiency or lowering cost. It may also be an entirely new concept. If an ...
s including some
software Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work. At the lowest programming level, executable code consist ...
are ''
de jure In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legall ...
'' not patentable.


Overlap with copyright

Patent and copyright protection constitute two different means of legal protection which may cover the same subject matter, such as computer programs, since each of these two means of protection serves its own purpose. Software is protected as works of literature under the
Berne Convention The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. Patents, on the other hand, give their owners the right to prevent others from using the technology defined by the patent claims, even if the technology was independently developed and there was no copying of a software or software code involved. In fact, one of the most recent EPO decisions clarifies the distinction, stating that software is patentable, because it is basically only a technical method executed on a computer, which is to be distinguished from the program itself for executing the method, the program being merely an expression of the method, and thus being copyrighted. Patents cover the underlying methodologies embodied in a given piece of software, or the function that the software is intended to serve, independent of the particular language or code that the software is written in. Copyright prevents the direct copying of some or all of a particular version of a given piece of software, but does not prevent other authors from writing their own embodiments of the underlying methodologies. Assuming a dataset meets certain criteria, copyright can also be used to prevent a given set of data from being copied while still allowing the author to keep the contents of said set of data a
trade secret Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ...
. Whether and how the numerus clausus principle shall apply to the legal hybrid software to provide a judicious balance between property rights of the title holders and freedom rights of computing professionals and society as a whole, is in dispute.


Debate

There is a
debate Debate is a process that involves formal discourse on a particular topic, often including a moderator and audience. In a debate, arguments are put forward for often opposing viewpoints. Debates have historically occurred in public meetings, a ...
over the extent to which software patents should be granted, if at all. Important issues concerning software patents include: * Whether software patents should be allowed, and if so, where the boundary between patentable and non-patentable software should lie; * Whether the
inventive step and non-obviousness The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, " he ...
requirement is applied too loosely to software; and * Whether patents covering software discourage, rather than encourage, innovation; *Whether software based on mathematical methods may be allowed if the mathematics or algorithm in question is complicated enough and may not be implemented with pencil and paper.


Open source software

There is strong dislike in the free software community towards software patents. Much of this has been caused by
free software Free software or libre software is computer software distributed under terms that allow users to run the software for any purpose as well as to study, change, and distribute it and any adapted versions. Free software is a matter of liberty, n ...
or
open source Open source is source code that is made freely available for possible modification and redistribution. Products include permission to use the source code, design documents, or content of the product. The open-source model is a decentralized so ...
projects terminating when the owners of patents covering aspects of a project demanded license fees that the project could not pay, or was not willing to pay, or offered licenses with terms that the project was unwilling to accept, or could not accept, because it conflicted with the free software license in use. Several patent holders have offered royalty-free patent licenses for a very small portion of their patent portfolios. Such actions have provoked only minor reaction from the free and
open source Open source is source code that is made freely available for possible modification and redistribution. Products include permission to use the source code, design documents, or content of the product. The open-source model is a decentralized so ...
software communities for reasons such as fear of the patent holder changing their mind or the license terms being so narrow as to have little use. Companies that have done this include
Apple An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple trees are cultivated worldwide and are the most widely grown species in the genus '' Malus''. The tree originated in Central Asia, where its wild ancest ...
, IBM,
Microsoft Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washi ...
,
Nokia Nokia Corporation (natively Nokia Oyj, referred to as Nokia) is a Finnish multinational telecommunications, information technology, and consumer electronics corporation, established in 1865. Nokia's main headquarters are in Espoo, Finland, i ...
,
Novell Novell, Inc. was an American software and services company headquartered in Provo, Utah, that existed from 1980 until 2014. Its most significant product was the multi- platform network operating system known as Novell NetWare. Under the le ...
,
Red Hat Red Hat, Inc. is an American software company that provides open source software products to enterprises. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina, with other offices worldwide. Red Hat has become a ...
, and Sun (now
Oracle An oracle is a person or agency considered to provide wise and insightful counsel or prophetic predictions, most notably including precognition of the future, inspired by deities. As such, it is a form of divination. Description The word ...
). In 2005 Sun Microsystems announced that they were making a portfolio of 1,600 patents available through a patent license called
Common Development and Distribution License The Common Development and Distribution License (CDDL) is a free and open-source software license, produced by Sun Microsystems, based on the Mozilla Public License (MPL). Files licensed under the CDDL can be combined with files licensed under ot ...
. In 2006, Microsoft's pledge not to sue Novell
Linux Linux ( or ) is a family of open-source Unix-like operating systems based on the Linux kernel, an operating system kernel first released on September 17, 1991, by Linus Torvalds. Linux is typically packaged as a Linux distribution, whi ...
customers, openSUSE contributors, and free/open source software developers over patents and the associated collaboration agreement with Novell was met with disdain from the
Software Freedom Law Center The Software Freedom Law Center (SFLC) is an organization that provides '' pro bono'' legal representation and related services to not-for-profit developers of free software/open source software. It was launched in February 2005 with Eben Mogle ...
while commentators from the Free Software Foundation stated that the agreement would not comply with
GPLv3 The GNU General Public License (GNU GPL or simply GPL) is a series of widely used free software licenses that guarantee end users the four freedoms to run, study, share, and modify the software. The license was the first copyleft for general u ...
. Meanwhile, Microsoft has reached similar agreements with
Dell Dell is an American based technology company. It develops, sells, repairs, and supports computers and related products and services. Dell is owned by its parent company, Dell Technologies. Dell sells personal computers (PCs), servers, data ...
and
Samsung The Samsung Group (or simply Samsung) ( ko, 삼성 ) is a South Korean multinational manufacturing conglomerate headquartered in Samsung Town, Seoul, South Korea. It comprises numerous affiliated businesses, most of them united under the ...
, due to alleged patent infringements of the Linux operating system. Microsoft has also derived revenue from Android by making such agreements-not-to-sue with Android vendors.


Unisys case

In the late 1990s, Unisys claimed to have granted royalty free licenses to hundreds of
not-for-profit A nonprofit organization (NPO) or non-profit organisation, also known as a non-business entity, not-for-profit organization, or nonprofit institution, is a legal entity organized and operated for a collective, public or social benefit, in co ...
organizations that used the patented LZW compression method and, by extension, the GIF image format. However, this did not include most software developers and Unisys were "barraged" by negative and "sometimes obscene" emails from software developers.


Licensing

Patenting software is widespread in the US. As of 2015, approximately 500,000 patents had issued in the 23 classes of patents covering "computer implemented inventions" (see table). Many software companies cross license their patents to each other. These agreements allow each party to practice the other party's patented inventions without the threat of being sued for
patent infringement Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may v ...
.
Microsoft Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washi ...
, for example, has agreements with IBM, Sun (now
Oracle An oracle is a person or agency considered to provide wise and insightful counsel or prophetic predictions, most notably including precognition of the future, inspired by deities. As such, it is a form of divination. Description The word ...
), SAP,
Hewlett-Packard The Hewlett-Packard Company, commonly shortened to Hewlett-Packard ( ) or HP, was an American multinational information technology company headquartered in Palo Alto, California. HP developed and provided a wide variety of hardware components ...
,
Siemens Siemens AG ( ) is a German multinational conglomerate corporation and the largest industrial manufacturing company in Europe headquartered in Munich with branch offices abroad. The principal divisions of the corporation are ''Industry'', ''E ...
,
Cisco Cisco Systems, Inc., commonly known as Cisco, is an American-based multinational digital communications technology conglomerate corporation headquartered in San Jose, California. Cisco develops, manufactures, and sells networking hardware, ...
,
Autodesk Autodesk, Inc. is an American multinational software corporation that makes software products and services for the architecture, engineering, construction, manufacturing, media, education, and entertainment industries. Autodesk is headquartere ...
, and recently
Novell Novell, Inc. was an American software and services company headquartered in Provo, Utah, that existed from 1980 until 2014. Its most significant product was the multi- platform network operating system known as Novell NetWare. Under the le ...
. Microsoft cross-licensed its patents with Sun, despite being direct competitors, and with Autodesk even though Autodesk has far fewer patents than Microsoft. The ability to negotiate cross licensing agreements is a major reason that many software companies, including those providing
open source Open source is source code that is made freely available for possible modification and redistribution. Products include permission to use the source code, design documents, or content of the product. The open-source model is a decentralized so ...
software, file patents. As of June 2006, for example,
Red Hat Red Hat, Inc. is an American software company that provides open source software products to enterprises. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina, with other offices worldwide. Red Hat has become a ...
had developed a portfolio of 10 issued US patents, 1 issued European patent, 163 pending US patent applications, and 33 pending international PCT ( Patent Cooperation Treaty) patent applications. Red Hat uses this portfolio to cross license with proprietary software companies so that they can preserve their freedom to operate. Other patent holders are in the business of inventing new "computer implemented inventions" and then commercializing the inventions by licensing the patents to other companies that manufacture the inventions.
Walker Digital Walker Digital is a privately held American research and development lab based in Stamford, Connecticut. It was founded in 1994 by Jay S. Walker, who also holds the position of chairman as of 2011. The company specializes in creating applicati ...
, for example, has generated a large patent portfolio from its research efforts, including the basic patent on the Priceline.com reverse auction technology. US universities also fall into this class of patent owners. They collectively generate about $1.4 billion per year through licensing the inventions they develop to both established and start up companies in all fields of technology, including software. Still other patent holders focus on obtaining patents from original inventors and licensing them to companies that have introduced commercial products into the marketplace after the patents were filed. Some of these patent holders, such as Intellectual Ventures, are privately held companies financed by large corporations such as Apple, Microsoft,
Intel Intel Corporation is an American multinational corporation and technology company headquartered in Santa Clara, California. It is the world's largest semiconductor chip manufacturer by revenue, and is one of the developers of the x86 ser ...
,
Google Google LLC () is an American Multinational corporation, multinational technology company focusing on Search Engine, search engine technology, online advertising, cloud computing, software, computer software, quantum computing, e-commerce, ar ...
, etc. Others, such as Acacia Technologies, are publicly traded companies with institutional investors being the primary shareholders. The practice of acquiring patents merely to license them is controversial in the software industry. Companies that have this business model are pejoratively referred to as
patent troll In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or ...
s. It is an integral part of the business model that patent licensing companies sue infringers that do not take a license. Furthermore, they may take advantage of the fact that many companies will pay a modest license fee (e.g. $100,000 to $1,000,000) for rights to a patent of questionable validity, rather than pay the high legal fees ($2,000,000 or more) to demonstrate in court that the patent is invalid.


See also

* Open Invention Network (OIN) * Patent Commons Project *
Piano roll blues The Piano Roll Blues or Old Piano Roll Blues is a figure of speech designating a legal argument (or the response to that argument) made in US patent law relating to computer software. The argument is that a newly programmed general-purpose digital ...
*
Social networking patents A social networking service or SNS (sometimes called a social networking site) is an online platform which people use to build social networks or social relationships with other people who share similar personal or career content, interests, act ...


References


External links

*
''Software and Business Methods''
on the WIPO web site
FFII Annotated Bibliography

Softwarepatents.eu
, an introduction to software patents in Europe and Germany (in German)


Economic studies

* This paper includes a method of identifying software patents that has proved popular with organisations such as the
Public Patent Foundation In public relations and communication science, publics are groups of individual people, and the public (a.k.a. the general public) is the totality of such groupings. This is a different concept to the sociological concept of the ''Öffentlichke ...
* * * * * – commentary on the FTC "To Promote Innovation" report, 2003 (translated into English) *


Books

* * * * Information Feudalism – Peter Drahos * – 377-page play-by-play memoir of the story of Florian's part in the campaign over the EU software patent directive. *


Papers and presentations

* * – Overview of the legal history and trends * – How software came to be patentable in the United States * * * * * {{cite journal, url=http://reoxy.org/swpc.htm, first=Brian, last=Kahin, title=The Software Patent Crisis, date=April 1990, journal=
Technology Review ''MIT Technology Review'' is a bimonthly magazine wholly owned by the Massachusetts Institute of Technology, and editorially independent of the university. It was founded in 1899 as ''The Technology Review'', and was re-launched without "The" in ...
, publisher=
Massachusetts Institute of Technology The Massachusetts Institute of Technology (MIT) is a private land-grant research university in Cambridge, Massachusetts. Established in 1861, MIT has played a key role in the development of modern technology and science, and is one of th ...
*