Legal Eagles | CWIIL Group Global Regional Headquarters Denmark

A software patent has been defined by the Foundation for a Free Information Infrastructure (FFII) as being a “patent on any performance of a computer realised by means of a computer program”.

Globally the situation is more complex and reflects varying cultural views of invention itself. 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 policy is consequently that a program for a computer is not patentable if it does not have the potential to cause a “further technical effect” beyond the inherent technical interactions between hardware and software.

There is a debate 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 requirement is applied too loosely to software; and
Whether patents covering software discourage, rather than encourage, innovation.

Background

A patent is a set of exclusionary rights granted by a state 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 which conditions are set by the patent owner: It may be gratis 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, China, the United States and India if the applicant wishes to obtain patents in those countries. However, some regional offices exist, such as the European Patent Office (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.

Purpose of Patents

For the U.S., the purpose of patents is laid down in the constitutional clause that gives Congress the power “[t0] 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 as to whether or not these aims are achieved with software patents.

Correct Utilisation is Crucial, and for that Professionals should Always be Consulted.

CWIIL TECH LABS is part of CWIIL Group Of Companies, a Global Group of Multi – Specialized Units with Diversified Interests and Activities, wherein each Company is a separate Legal Entity registered under prevailing laws in different parts of the world. The Group is active in a Multitude of Business Verticals, and its Technology Unit by the name of CWIIL TECH LABS covers a host of Technology Services, Products, Projects and Solutions.

Consulting Team – CWIIL Tech Labs, either directly or through the professionals in any CWIIL Group of Companies, for Professional Technology Guidance for your Specific Purpose, ensures Advise based on Highest Level of Knowledge which are given to you by a Team of Select Research-Oriented Experts whom each will do their own assessing of your matter, and also assess them together, thus ensuring that in case a mistake has been made by one, it will be noticed and corrected even before it is being passed on to you. Receiving incorrect and unknowledgeable technology advice can be disastrous and thus should be avoided.

Remember there is no quick fix solution to any problem. Thus, always ensure to consult Highly Knowledgeable Group Of Professionals whom would Provide You with a Collective Advice, never individual advise. This Group Advise and Approach is unique with all CWIIL Tech Labs Solutions and is in tune with the overall Management Philosophy of all CWIIL Group Companies, including but not limited to only CWIIL Tech Labs [ A Unit Of CWIIL Group ].

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A software license is a legal instrument (usually by way of contract law, with or without printed material) governing the use or redistribution of software. Under United States copyright law all software is copyright protected, except material in the public domain. A typical software license grants an end-user permission to use one or more copies of software in ways where such a use would otherwise potentially constitute copyright infringement of the software owner’s exclusive rights under copyright law.

In addition to granting rights and imposing restrictions on the use of software, software licenses typically contain provisions which allocate liability and responsibility between the parties entering into the license agreement. In enterprise and commercial software transactions these terms often include limitations of liability, warranties and warranty disclaimers, and indemnity if the software infringes intellectual property rights of others.

Software licenses can generally be fit into two categories: Proprietary Licenses and Free and Open Source Licenses. The significant feature that distinguishes them are the terms which the end-user’s might further distribute or copy the software.

In the United States, Section 117 of the Copyright Act gives the owner of a particular copy of software the explicit right to use the software with a computer, even if use of the software with a computer requires the making of incidental copies or adaptations (acts which could otherwise potentially constitute copyright infringement). Therefore, the owner of a copy of computer software is legally entitled to use that copy of software. Hence, if the end-user of software is the owner of the respective copy, then the end-user may legally use the software without a license from the software publisher.

As many proprietary “licenses” only enumerate the rights that the user already has under 17 U.S.C. § 117, and yet proclaim to take rights away from the user, these contracts may lack consideration. Proprietary Software Licenses often proclaim to give software publishers more control over the way their software is used by keeping ownership of each copy of software with the software publisher. By doing so, Section 117 does not apply to the end-user and the software publisher may then compel the end-user to accept all of the terms of the license agreement, many of which may be more restrictive than copyright law alone. The form of the relationship determines if it is a lease or a purchase, for example UMG v. Augusto or Vernor v. Autodesk, Inc..