There are a number of reasons.
By Michael McLaughlin
20 May 2009
Software patents are a controversial topic for a number of reasons. The controversy surrounds whether and to what extent patents should be granted for software inventions. At the moment, many countries allow patents for software inventions, but there has been a great deal of uncertainty as to what is and what is not patentable. There is in some areas strong opposition to the very idea of software patents and, maybe surprisingly, emotions do run high. It’s an ongoing controversy and the European Patent Office (EPO), one of the biggest and most influential of all, is reviewing the matter again.
The principal reason for the controversy is that the laws of many countries define “programs for computers as such” as things which cannot be patented (although there is no such exclusion in Singapore). The provisions of the law which make these definitions are referred to as “statutory exclusions”. The controversy comes from the “as such” part of the exclusions in that it’s not well defined as to what it actually means. For instance, when is a software invention “a computer program as such”, and when is it not? Because when it’s not, it’s possible to obtain a patent for the invention.
Ongoing issue
It’s an issue which comes up time and time again in the patent courts of the world. Many of these court hearings have sought to interpret the “as such” (or equivalent) exclusions and, from this, those countries have developed a legal framework within which computer-related inventions can be patented, subject to satisfying various criteria, even with the existence of these exclusions. We’ll take a look at this in later posts.
The Anti-Software Patent Lobby waves, vigorously, the anti-software patent flag (the clue is in their name) on the basis of the existence of these statutory exclusions. Of course, it is completely within their rights to do so. For instance, the Wikipedia entry on “software patents” informs us that “There is tremendous animosity in the free software community towards software patents”. (Frankly, I’ve never fully understood why that is, although I’m always willing to try. So if anyone does feel strongly about this, please post a reply.)
Also, check here (a page entitled Patents Roundup: Oracle, Backlash Against Software Patents…”; see about one-third of the way down the page) where someone picked up pretty quickly that I had started writing this blog. Unfortunately, I don’t think the writer of this piece has a full grasp of all the facts. The writer opines that “… lawyers avoid complying with rules and manage to patent software anyway …” where, as noted above, there is a distinct legal framework for software patents. So, we’re not seeking to bend or break the rules, we’re working within the rules of the existing legal frameworks. Of course, I can’t say that no-one ever tried to bend the rules, but it seems to me to be a pretty unfair and inaccurate generalisation.
The big picture
Now, before you say “of course he’s going to say that, he’s a patent lawyer, isn’t he?” we need to look at the big picture. We need to understand the exclusions and whether it is still relevant.
When the European Patent Convention was introduced back in the 1970s, the exclusion for “programs for computers as such” was written in to European patent law. Looking at the history of it, one reason given for this was that it was felt the computer industry didn’t need or want patents (despite the fact patents for computer-related inventions have been issued since at least the early 1960s). I haven’t so far found out whether that feeling was representative of the industry en masse. Another reason that has been put to me is that computer program listings are covered by copyright protection and it is generally undesirable to have two types of intellectual property rights covering the same thing. That one I understand.
However, I think this is very much a case of “that was then and this is now”. Despite those who disapprove of software patents, there is an overwhelming demand in the ICT industries for patents for computer-related inventions. As we discussed previously, a patent can be a very strong tool and companies see them as an essential business tool in a marketplace of ever-increasing competitiveness. If there was no demand for this sort of thing, I simply wouldn’t be writing this blog.
I do a great deal of work in the area in response to demand from the industry. Without that demand, I never would have developed any expertise in it and would simply be in no position to write about it. See also the EPO’s site which states that “… patent applications for computer-based inventions have the highest growth rate among all patent categories presented to the European Patent Office (EPO) over the past few years.”
Anyway, that’s just a quick introduction to the topic. We’ll follow up shortly with a look at some bodies in the open-source movement, the arguments for and against software patents, whether software patents are any different from patents in other technology fields and the practice for software patents in some countries of note.
Michael McLaughlin is a patent attorney with at McLaughlin IP in Singapore. His practice extends across all areas of engineering and physical sciences, but has a particular focus on ICT.
