Software patent--legal viewpoint.Software patents and patents on computer-implemented inventions (CII CII Confederation of Indian Industry CII Chartered Insurance Institute (UK) CII Construction Industry Institute (University of Texas) CII Council of Institutional Investors ) are a class of patents and one of many legal aspects of computing There are many legal aspects to computing - some of which are listed below. The approach taken to these tends to vary greatly between jurisdictions. Areas of law . There is intense debate as to what extent such patents should be granted, if any. The Free On-line Dictionary Free On-line Dictionary - Free On-line Dictionary of Computing of Computing provides a general definition of a "software patent" as "a patent intended to prevent others from using some programming technique", while the European Patent Office (EPO EPO see erythropoietin. EPO Erythropoietin, see there ) provides a general definition of a "computer-implemented invention": An expression intended to cover claims which involve computers, computer networks or other conventional programmable apparatus whereby prima facie [Latin, On the first appearance.] A fact presumed to be true unless it is disproved. In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. the novel features of the claimed invention are realised by means of a program or programs" (http://www.european-patent-office.org/legal/guidlines/e/c-iv-2-3-6.htm) or, expressed in other words Adv. 1. in other words - otherwise stated; "in other words, we are broke" put differently . An invention whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realised wholly or partly by means of a computer program" (http://cii.european-patent-office.org/law_practice/index.en.php). Software patents vs Copyright Software 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 stronger restrictive power. It covers the programming method itself, independently of any implementation in code. Usually, reimplementing a program will avoid copyright infringement Noun 1. copyright infringement - a violation of the rights secured by a copyright infringement of copyright plagiarisation, plagiarization, piracy, plagiarism - the act of plagiarizing; taking someone's words or ideas as if they were your own , but not patent infringement patent infringement n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. . Like all patents, software patents are enforceable regardless of whether the competitors were aware of the patent (patent applications are kept secret for at least 18 months) and the software was completely independently developed. A patent holder may prevent others from using their invention absolutely, or licence it at terms they dictate. There are strong sanctions for patent infringement, including triple damages in the USA if the infringement is considered deliberate, which means knowing of the patent but not licensing it (even under the assumption it was invalid). As laid out in TRIPS, patents are required to last 20 years after filing, provided the maintenance or renewal fees are paid. History The 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. The patent relates to solving simultaneous linear equations. The USPTO USPTO abbr. United States Patent and Trademark Office 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 mailer". 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. The USPTO maintained this position, that software was in effect a mathematical algorithm, and therefore not patentable into the 1980's. The position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr Diamond v. Diehr, 450 U.S. 175 (1981)[1], was a U.S. Supreme Court decision which held that the execution of a process, controlled by running a computer program was patentable. . The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mould rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could. This ruling wasn't as straightforward as many would like and this forced many electronic device makers into the courts to establish their inventions were in fact patentable. As a result, in 1982 the U.S. Congress created a new court (the Federal Circuit) to hear patent cases. The court made patents generally easier to uphold by presuming pre·sum·ing adj. Having or showing excessive and arrogant self-confidence; presumptuous. pre·sum  ing·ly adv. patents were valid unless proved invalid
and weakening the defence of nonobviousness. By the early 1990s the
patentability of software was well established, and in 1996 the USPTO
issued Final Computer Related Examination Guidelines. See Software
patents under United States patent law This article relates to the patentability of software and computer programs, or in other words software patents, under United States patent law.In the 1950s, 1960s, and 1970s, the United States Patent and Trademark Office (PTO) did not grant a patent if the . In Europe, the EPO (and other national patent offices) has been issuing many software patents since the 1980s, although (or since) Article 52 of the European Patent Convention The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents excludes "programs for computers" (Art. 52(2)) but only to the extent it relates to activities "as such" (Art. 52(3)). See Software patents under the European Patent Convention The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention (EPC) is the extent to which inventions, or alleged inventions, in these fields are patentable under the Convention on the Grant of European Patents of . In India, a clause to include software patents was quashed by the Indian Parliament in April 2005. 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. Law Interpreting the legal provisions, are different under different jurisdictions. The national Jurisdictions relating to relating to relate prep → concernant relating to relate prep → bezüglich +gen, mit Bezug auf +acc software patents in Europe and in the European Union European Union (EU), name given since the ratification (Nov., 1993) of the Treaty of European Union, or Maastricht Treaty, to the European Community are not harmonized har·mo·nize v. har·mo·nized, har·mo·niz·ing, har·mo·niz·es v.tr. 1. To bring or come into agreement or harmony. See Synonyms at agree. 2. Music To provide harmony for (a melody). even though some harmonization har·mo·nize v. har·mo·nized, har·mo·niz·ing, har·mo·niz·es v.tr. 1. To bring or come into agreement or harmony. See Synonyms at agree. 2. Music To provide harmony for (a melody). has been brought into the national jurisdictions in the 1970s and 1980s. Interpretation of the substantive law The part of the law that creates, defines, and regulates rights, including, for example, the law of contracts, torts, wills, and real property; the essential substance of rights under law. varies to some extent from state to state. In 2002, in order to harmonize the national laws a step further, the, EU Commission proposed a Directive on the patentability of computer-implemented inventions, but settling the exact terms of the Directive has proven highly controversial. In 2003, the European Parliament European Parliament, a branch of the governing body of the European Union (EU). It convenes on a monthly basis in Strasbourg, France; most meetings of the separate parliamentary committees are held in Brussels, Belgium, and its Secretariat is located in Luxembourg. deeply amended the original draft from the Commission. Two years later, the Council of the European Union Council of the European Union, branch of the governing body of the European Union (EU) that has the final vote on legislation proposed by the European Commission and deliberated by the European Parliament. (i.e. national government ministers) mostly reinstated the original text, but the text was eventually rejected by the Parliament on July 6, 2005. The proposed directive will not become law. Software patents under multilateral treaties: * Software patents under TRIPs Agreement The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are important elements in the debate on the international legal framework for the patentability of software * Software patents under the Patent Cooperation Treaty The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its Contracting States (see Accession section below for current membership * Software patents under the European Patent Convention Software patents under national laws: * Software patents under United States patent law * Software patents under United Kingdom patent law There are four over-riding requirements for a patent to be granted under United Kingdom patent law. Firstly, there must have been an invention. That invention must be novel, inventive and susceptible of industrial application. (See Patentability). * Software patents under German patent law Scope of software patentability As 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 piece of code not relating to "the use of controllable forces of nature to achieve predictable results". * A piece of code relating solely to the "processing, handling and presentation of information" * A piece of code with no "technical effect' (depending in turn on how one chooses to define 'technical") * A piece of code as an abstract listing, not actually running on a programmable device * A piece of code with merely literary merit, rather than any identifiable functional benefits 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'). The expression 'computer-implementable inventions" has been coined to refer to this reality. Additionally, under the so-called doctrine of equivalents The doctrine of equivalents is a legal rule in most of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent 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 invention The term "computer-implemented invention' was put forward by the European Commission, based on an expression used by the European Patent Office and proposed 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." The term has been criticized as a politically motived obfuscation ob·fus·cate tr.v. ob·fus·cat·ed, ob·fus·cat·ing, ob·fus·cates 1. To make so confused or opaque as to be difficult to perceive or understand: "A great effort was made . . . manoeuver. The German chancellor Schroder is quoted as saying "the manuscript is titled with software patents'-wait, I may no longer say that--well the 'protection of computer-implemented inventions ... The terms "software-enabled invention", "software-related invention', "software--operated invention" are also sometimes used to convey a similar meaning. Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. Several successful litigations show that software patents are enforceable in the USA. For example, Eolas was awarded $565 million from Microsoft. 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 patents Patenting software has become popular. This is difficult to quantify but as an indication as of January 2005 Microsoft alone has 6,130 issued patents which are presumably pre·sum·a·ble adj. That can be presumed or taken for granted; reasonable as a supposition: presumable causes of the disaster. mainly software patents (US PTO PTO abbr. 1. Parent Teacher Organization 2. or p.t.o. please turn over 3. power takeoff PTO or pto please turn over Noun 1. Search). Microsoft expects to file 3,000 new applications this year. IBM (International Business Machines Corporation, Armonk, NY, www.ibm.com) The world's largest computer company. IBM's product lines include the S/390 mainframes (zSeries), AS/400 midrange business systems (iSeries), RS/6000 workstations and servers (pSeries), Intel-based servers (xSeries) 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 AG, Cisco and recently Autodesk. Interestingly Microsoft agreed to share, with Sun even though they are a direct competitor 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 1990s IBM started an aggressive licensing program which generated over $2 billion a few years later. Licences are often charged as a cost per unit sold or at a few percent of gross sales Gross Sales A measure of overall sales that isn't adjusted for customer discounts or returns, calculated simply by adding all sales invoices, and not including operating expenses, cost of goods sold, payment of taxes, or any other charge. (not profit), and this license tax can become a major burden 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. Walker Digital in Stamford, CT has filed for hundreds of patents in hopes of forcing infringers to take a license from them. This has been qualified by some as a form of 'patent trolling (1) Surfing, or browsing, the Web. (2) Posting derogatory messages about sensitive subjects on newsgroups and chat rooms to bait users into responding. (3) Hanging around in a chat room without saying anything, like a "peeping tom." ". Many free software / open source developers fear that software patents will prevent them creating software. Such projects generally have no defensive patent portfolio of their own, no mechanism to pay royalty fees, and have smaller budgets. This has affected several projects (FFII FFII Foundation for a Free Information Infrastructure FFII Final Fantasy Two (video game) FFII Foundation for Free Information Infrastructure Effects of Patents. Several companies (eg. IBM) have licenced parts of their patent portfolio to open source products or more generally, particularly to encourage standards. However, this represents a tiny 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. Novell seems to have gone further in committing to actively use its patent portfolio against other companies that might bring actions against certain open source products. The "inventive step' requirement for software patents is viewed by some as being quite low. This allegedly makes it relatively easy to obtain a software patent. The quality of assessment 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. id Software and its head John Carmack pursue a strategy of avoiding software patents at all. In Carmack's words "The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it Is horrifying." Ironically, Carmack found himself on the receiving end of a patent dispute when the programming technique known as "Carmack's Reverse' turned out to be patented by Creative Labs! Creative proceeded to use this patent to their advantage by forcing the game Doom3 to more closely support Creative products on threat of litigation. It has since been discovered that Carmack himself had 'or art in the source code of Quake3 and id Software would have likely won any litigation and invalidated the patent at the expense of Doom3 being delayed, which they could not afford. Clearly, this particular software patent (US 6,384,822) had the effect of discouraging independent discovery. In practice, software engineers rarely search patent databases and applications looking for Looking for In the context of general equities, this describing a buy interest in which a dealer is asked to offer stock, often involving a capital commitment. Antithesis of in touch with. new inventions that could benefit their projects. This is because of 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. Many infringements are for independent inventions, which many programmers lament their loss of freedom to innovate. A programming problem is usually solved through logic and application of mathematical laws, not invention, making it risky ground for software companies. There are several Economic Studies that assess whether software patents actually encourage or discourage innovation. |
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