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.
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