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Software patents are a type of intellectual property and one of many legal aspects of computing. There is intense debate as to what extent such patents should be granted, see Software patent debate.
DefinitionFOLDOC provides a general definition of a software patent as "A patent intended to prevent others from using some programming technique". Software patents and copyrightSoftware 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 much stronger restrictive powers. It covers the invention itself, independently of any implementation in code. Thus usually reimplementing a program will avoid copyright infringment, but not patent infringement. Like all patents, software inventions are covered even if they are independently developed by other developers. A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringment, including triple damages in the USA if the infringement is considered deliberate. Most patents expire 20 years after filing (provided the maintenance or renewal fees are paid), while currently copyright lasts for the life of the author plus 70 years in the US (Sonny Bono Copyright Term Extension Act) and the EU. Similar terms based on the life of the author are in force in almost all other countries. HistoryThe 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 ([1] (http://www.cippm.org.uk/pdfs/JILT%20kretschmer%2011_03.pdf), see end of page 3). The patent relates to solving simultaneous linear equations. Computers powerful enough to run complex software have existed since the 1950s. However, 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. In 1982 the US created a new court (the Federal Circuit) to hear patent cases. The court made patents generally easier to uphold by presuming patents were valid unless proved invalid and weakening the defence of nonobviousness. By the early 1990's the patentability of software was well established, and in 1996 the USPTO issued Final Computer Related Examination Guidelines (http://www.bitlaw.com/source/soft_pats/final.html). See Software patents under U.S. patent law. The EPO has been issuing many software patents since the 1980s. The European Patent Convention, Article 52 specifically excludes "programs for computers...as such". This is currently the focus of much debate, and the European parliament has recently deferred an attempt to make software patentable BBC 3 Feb 05 (http://news.bbc.co.uk/1/hi/technology/4232971.stm). See Software patents under the European Patent Convention. 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. LawJurisdictionsSubstantive 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 order to harmonize the national laws a step further, the EU Commission has proposed a Directive on the Patentability of Computer-Implemented Inventions; but settling the exact terms of the Directive has proved highly controversial. Software patents under multilateral treaties:
Software patents under national laws:
Scope of software patentabilityAs 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 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"). 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. Computer-implemented inventionThe term "computer-implemented invention" was put forward by the European Commission and defined 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." [2] (http://europa.eu.int/comm/internal_market/en/indprop/comp/com02-92en.pdf) The term has been criticized as a politically motived obfuscation manoeuver [3] (http://elis.ugent.be/~jmaebe/swpat/cii.html). The German chancellor Schröder is quoted with "the manuscript is titled with 'software patents' - wait I may no longer say that - well the 'protection of computer-implemented inventions'" [4] (http://www.heise.de/tp/r4/artikel/17/17825/1.html). The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning. LitigationSeveral successful litigations show that software patents are enforceable in the USA. For example, Amazon succesfully sued Barnes and Noble over its one click patent, and 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. Practical effects of software patentsPatenting software has become popular. This is difficult to quantify but as an indication as at 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, Cisco and recently AutoDesk (IDG News Service (http://www.arn.idg.com.au/index.php?taxid=620938001&id=63439861)). Interestingly Microsoft agreed to share with Sun even though they are a direct compeditor and with AutoDesk even though they have far fewer patents than Microsoft. It appears that large companies would prefer to avoid expensive and uncertain litigation rather than assert their own intellectual property rights. Indeed, being able to negotiate such agreements is a major reason that companies file "defensive" patents. Some large companies have started to enforce patent rights. For example, in the early 1990's IBM started an aggressive licencing program which generated over $2 billion a few years later (Newsweek Article (http://www.msnbc.msn.com/id/5578247/site/newsweek/)). 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 burdon if several different organizations are claiming 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. Many open source developers fear that software patents will prevent them creating software systems. Such projects generally have no defensive patent portfolio of their own, and no mechanism to pay royalty fees. This has affected several projects (FFII Effects of Patents (http://swpat.ffii.org/patents/effects/)). Several companies (eg. IBM) have licenced parts of their patent portfolio to open source products or more generally, particulary to encourage standards. However, this represents a small fraction of the total number of software patents that have been issued. It does not give the open source community a defensive patent portfolio which can be used to negotiate cross-licencing agreements. Novel seems to have gone further in commiting to actively use its patent portfolio against other companies that might bring actions against certain open source products. The inventive step required for new software patents appears to be quite low. This makes it relatively easy to obtain a software patent. The quality of assesment 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 File Allocation Table#FAT licensing. In practice, software engineers rarely search patent databases and applications looking for new inventions that could benefit their projects. This is because 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 (http://www.ffii.org.uk/swpat/ftc/ftc.html#disclosure)). Many infringements are for independent inventions. There are several economic studies that assess whether software patents actually encourage or discourage innovation. It now seems likely that software will continue to be patentable in the USA but not in Europe. This suggests that there will be software products that are available in Europe but not in the USA. See also
External links
Economic studies
Notes
de:Softwarepatent el:Software Patents es:Patente de software fr:Brevet logiciel nl:Octrooi op software
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