From Wikipedia, the free encyclopedia
The software patent debate is the argument
dealing with the extent to which it should be possible to patent software
and computer-implemented inventions as a matter of public policy.
Policy debate on software patents has been active for years.[1] The
opponents to software patents have gained higher visibility with
lower resources through the years than their pro-patent
opponents.[2]
Arguments and critiques have been focused mostly on the economic
consequences of software patents.
One aspect of the debate has focused on the proposed European Union
directive on the patentability of computer-implemented
inventions, also known as the "CII Directive" or the "Software
Patent Directive," which was ultimately rejected by the EU
Parliament in July 2005.
Arguments for
patentability
There are several arguments commonly given in defense of
software patents or in defense of the patentability of computer-implemented
inventions.
Promotes
development
- Patenting software inventions promotes investment in research and development.[3]
- The basic principles of patent law were developed before
computers were invented and have served the US for centuries. The
principles serve to promote the development of useful arts.[4]
Supporters of software patents argue that inventions in the
software arts are useful to modern life and therefore deserve the
same incentive provided for inventions in other useful arts (i.e.,
to promote investment in research and development).
Public
disclosure
- A patent must publicly disclose the invention and so educate
the public and advance the state of the art of the invention. Thus
patents accelerate software development by making previously
unknown and not obvious software inventions public.
- Patents must disclose how to make and use an invention in
sufficient detail so that other persons of ordinary skill in the
art of the invention can make and use the invention without undue
experimentation.[5]
Furthermore, patents are only valid if the inventions they disclose
were not known by the public prior to the filing of the patent
application, or if the inventions were not obvious to those of
ordinary skill in the art at the time the patent application was
filed. (US laws are somewhat different from other countries. In the
U.S. the focus is on when the invention was made, not when the
patent application was filed).
- This is the formal law, and a rule that if violated could lead
to invalidation of a patent, so is followed strictly by patent
lawyers.[6]
- The time delay between when a software patent application is
filed, and when it becomes public is 18 months.[7]
This is a compromise position allowing U.S. innovators to develop
their software before revealing details about it and giving
competitors an unfair look at their research and development, and
providing the public notice within a fair amount of time to allow
others to develop their own technology. The format in which
software inventions are disclosed in patents (plain language text,
flow charts, line drawings, etc.) allows a person with reasonable
programming skills to recreate software capable of performing the
ideas patented, as required by law. Copyleft publications by contrast, provide a
different type of information addressing a different legal standard
with different incentives.
Protection
- Organizations should be able to protect their intellectual property.
- The US congress has stated that "anything under the sun made by
man" deserves patent protection[8] to
promote innovation.
- Some aspects of software are also covered by copyright law, but
those are largely different than the protection of ideas and
innovation in the useful arts provided by patent law.[9]
- Protection for software by patents is already sufficiently
limited.
- Inventions can only be patented if they are non-obvious. This
reduces the chance of patents being granted on mere algorithms with
no technical effect or the granting of "trivial" patents with no
inventive step.[10]
- Other countries such as the US, Australia and Japan do not have
the same limits on software patents and this puts pressure on
Europe to expand the scope of protection.
- The limits in Europe are not sufficient in the eyes of
opponents to software patents.
Economic
benefit
- Software patents resulting from the production of patentable
ideas can increase the valuation of small companies.[3]
Patent lawsuits are one of the only tools available to combat large
players in the software marketplace (e.g. Microsoft) and allow
innovative small companies to build a market of their own or at
least receive fair compensation for their investment.[11]
- Small companies can normally afford to patent the innovations
they may have, as a software patent costs, on average $20,000 and
then many banks and other investors are available to help with
litigation costs.
International
law
Patent
challenges
- Granted patents can be revoked if found to be invalid.
Development of new ideas is therefore not blocked by bad patents,
and therefore the proposed negative effects of patents are
moot.
- If members of the public feel that an examiner has allowed an
overly general claim in a patent, they may file an interpartes
examination in the U.S., an opposition
in Europe, or a lawsuit in Court, to argue that claims are overly
broad and should not be allowed.
- However, due to the relative recent innovation of the
interpartes examination, few patents in the U.S. have been
challenged in an interpartes reexamination. The Patent Reform Act of 2007 has
been introduced into the U.S Congress to reform the
U.S. patent system. Among other reforms, this act would introduce a
full patent opposition system into the U.S. similar to the European
system. If the bill passes in its current form, a patent owner
would have less security in their knowledge of their rights, and a
large corporation could preempt an actual inventor's rights by
filing a patent before that inventors because of a change from a
first to invent to a first to file system.
- Opposition proceedings in Europe can take 2 to 5 years to
complete and can be very expensive.
Arguments against
patentability
Opponents of software patents argue that:
Cost and loss of R&D
funds
- The cost of determining if a particular piece of software
infringes any issued patents is too high and the results are too
uncertain.
- Should a software developer hire a patent attorney to perform a clearance
search and provide a clearance
opinion, there is no guarantee that the search could be
complete. Different patents and published patent applications may
use different words to describe the same concepts and thus patents
that cover different aspects of the invention may not show up in a
search. The cost of a clearance searches may not prove to be cost
effective to businesses with smaller budgets or individual
inventors.
- Developers may be forced to pay license fees for standards that
are covered by patents. Most organizations that set standards
require that members disclose any pending patents they may have
that cover the standards. They also require that the members make
those patents available on a nondiscriminatory basis and at a
reasonable license fee. Members that hide the existence of patents
for inventions that standards are based on can be subject to legal
action.
- Patenting software inventions takes investment away from
research and development.[14]
Copyright
- Traditional copyright has provided sufficient protection to
facilitate massive investment in software development.[15]
- Patent protection shall confine exceptions to the authors
exclusive copyright, which do not conflict with a normal
exploitation of the authors work, and do not unreasonably prejudice
the legitimate interests of the right holder according to TRIPS Art
13, taking account of the legitimate interests of the authors as
third parties according to TRIPS Art 30, thus balanced in rights
and obligations according to TRIPS Art 7 to promote technological
innovation in a manner conducive to social and economic
welfare.[16]
- Copyright is the
right of an author(s) to prevent others from copying their creative
work without a license. Thus the author of a particular piece of
software can sue someone that copies that software without a
license. Copyright protection is given automatically and
immediately without the need to register the copyright with a
government, although registration does strengthen protection.
Copyrighted material can also be kept secret. Often copyright
infringement is relatively easy to determine. Copyright protection
has proven to be a method for protecting investment in software
innovation. Some people in the software industry have asserted that
the additional protection that patents afford is not needed and is
not worth the downsides of expense, delay and uncertainty
associated with patents. However, the differences between copyright
protection and patent protection are vast. Where patents provide
protection over a created idea, copyright protection only protects
a particular manifestation of that idea.
Trivial
patents
- Anecdotal evidence suggests that some software patents cover
either trivial inventions or inventions that would have been
obvious to persons of ordinary skill in the art at the time the
invention was made.[17]
- Patent examiners rarely have a comprehensive knowledge of the
specific technologies disclosed in the patent applications they
examine. This is in large part due to the enormous number of
micro-niches in the software field and the relatively limited
number of examiners. So, patents are sometimes allowed on
inventions that appear to be trivial extensions of existing
technologies. [18]
Others debate that these inventions are truly obvious without the
benefit of hindsight.[19]
- If any member of the public disagrees with a patent office's
granting of a patent, they can challenge the validity of the patent
once it issues. This is done by a reexamination in the U.S. and an opposition proceeding in Europe.
Other countries have similar proceedings. Currently about 5% of all
issued patents in Europe are opposed.[20]
Lack of patent
application disclosure
- Patent applications are often undisclosed until after a new
invention becomes widely used. Hence developers have no way of
knowing if a useful new idea may become patented in the future and
no longer available to them.
- Patent applications must be filed before a new idea becomes
public. Patent applications are published 18 months after they are
filed. In the U.S., however, there is a one-year grace period
between when an invention becomes public and when an inventor must
file. Also in the U.S., inventors can get an exception to the
publication rule if they give up their rights to patents outside of
the U.S. The Patent Reform Act of 2007
proposes to close this loophole and force the publication of all
U.S. patent applications 18 months after they are filed. The act is
still pending before the United States Congress as of Jan
2006. Because of the best mode requirement of the patent filing,
this may require a patentee to reveal secrets to a competitor
without any upside, so the 18 month requirement is an attempt to
balance these interests.
Legal
constraints
- Legal actions involving patent claims are very expensive, slow
and unpredictable.
- They can be avoided by paying royalties that are properly
due to patent holders.
- The U.S. patent system has companies in the U.S. and has
allowed a new class of corporation that creates further profit for
US citizens by extracting patent revenue from foreign corporations
without producing any tangible products.
- However, some litigation companies help small companies by
providing deep pockets in case a small company's patents are
infringed. The litigation company will fund the legal expenses of a
lawsuit (typically 2 to 10 million US dollars) so that a small
company can afford to bring a patent infringement lawsuit against a
big company that is infringing their patents. In exchange, the
litigation company receives a substantial fraction of the
settlement.
- Litigation companies also provide a means for investors in
small companies to recover some of their investment should the
small company go out of business. The litigation company will buy
the patents and investors will recover at least some of their
funds. Litigation is possible to avoid by licensing from a patent
holder or creating workarounds for patented techniques.
Patent
infringement
- Enterprises that receive numerous patent infringement notices
cannot afford to simply pay what each patent holder demands.
- If an enterprise uses algorithms that are covered by a large
amount of other people's patents they should expect to pay high
fees.
- Large companies regularly try to enforce their patents on
smaller corporations. However, it is not possible to completely
avoid patented technology, because no mechanism for avoiding
patent-related risk exists other than innovative insurance and
investment instruments provided by many companies.
SME
disadvantage
- Software patents may affect open source and small and medium
enterprises (SMEs) that do not have a large defensive patent
portfolio.
- If SMEs are not as inventive as large corporations then society
would benefit from their removal.
- The number of patents filed is not a measure of inventiveness.
The value to society should not be measured by inventiveness.
- Open source and small to medium companies might believe they
are inventive in creating new ideas and software, but maybe blocked
from doing so by an existing patent on one of the algorithms they
desire to use, originally created another person, that ends up
blocking all uses without a proper license.
Ideas
are not patentable
- Granting a patent on an idea when it is not sufficiently offset
by a balanced disclosure of an associated method of manufacture of
material goods will harm society. It only prevents use of the idea
without the corresponding benefit to society.
- For a software or computer-implemented inventions to be
patented, it needs to be disclosed in a manner sufficient clear and
complete for one skilled
in the art to reduce it to practice.
- Since all software are just descriptions of ideas, it is not
clear which software can be inventions and which cannot.
- All software can be reduced to practice trivially by running it
in a computer, but the courts are undecided about how this affects
patentability.
- Source code for software is the preferred form for making
modifications to the software, so it would seem that "sufficiently
clear" should mean "source code for the invention is
disclosed".
- Pure mathematical algorithms are not patentable in the United
States (see State Street
decision). A method for producing a concrete useful or tangible
result, however, is patentable. That method is not rendered
unpatentable merely because it incorporates a software or
mathematical algorithm. Similar conditions for patentability apply
in other jurisdictions, such as Japan and Europe.
Software patents are not
useful
- Some patent disclosures in the software field are not readable
to some programmers; they are neither used nor useful as a source
of technical information.[21]
Though a skilled programmer usually has little trouble generating
code to solve a problem when presented with a detailed algorithm
for the solution.
Patent examination is too
slow
- For 2005, the projected average pendency for patent
applications in the "Computer Architecture, Software &
Information Security" department of the U.S. Patent and Trademark
Office was 3 and a half years.[22]
- In Europe, the average time taken to grant a patent in any
field of technology was almost 4 years in 2005,[23] with
the computer related fields probably being greater than the
average. By the time patent applications issue as patents, the
inventions claimed therein will be perceived to be already in the
public domain. This hurts inventors who see their inventions copied
without permission, investors who fail to earn a suitable return on
the salaries they paid to inventors and the public, which is faced
with the uncertain prospects as to exactly what inventions are in
the public domain and which inventions will be covered by a pending
patent application.
- Inventors can use a petition to make special to
accelerate the examination of their U.S. patent applications.
Accelerated examination can also be requested in Europe.
- Most patent applications are published 18 months after filing,
so third parties are usually made aware of prospective patent
rights well before any patent is granted.
- Patents may be very different from the published applications,
so the published application may only serve as a guide to the final
scope of protection.
Purchase of existing
patents
- Software patents allow investment companies to purchase patents
from others and generate lawsuits to collect revenue off the
monopoly granted by the patent.[24] Some
believe it to be offensive that a company that does not create
software might benefit from a patent for software. Others believe
that these patents are generally purchased by highly speculative
investors from software producing companies that were looking for
investments (e.g., companies having financial trouble, companies
moving out of a particular business area, etc.) and thereby provide
needed capital investment into the software industry.[25]
- These investment companies are sometimes referred to by the
derogatory terms "patent parasites" or, more commonly, patent trolls and are a consequence of the
possible high damage awards that litigation in the US may provide,
not of software patents.[26]
Current
US Court Cases
Bilski
The most prominent case believed to decide the future of
software patents is currently being decided upon by the Supreme Court of the
United States. Bilski, as the case is commonly known, deals
with the legality of patenting business methods. Bilski and his
partner Warsaw applied for and were denied a patent for their
business method of hedging risks in commodities trading[27]. They
sought to offer consumers a flat rate energy billing scheme and
then balance the risk with the supplier of energy. The patent
examiner rejected the patent on the grounds that it was not
implemented in a specific apparatus and was purely abstract in
nature[28].
Bilski brought the rejection to the patent office's appeals board
who affirmed the rejection, although citing the error of the
examiner for basing his analysis on the technological arts. The
case was then heard en banc
in front of the US Federal Circuit Court and the rejection was
again affirmed, with Bilski's patent request failing the so-called
"machine-transformation" test. The case was heard by the US Supreme
Court on November 9, 2009 and no ruling has been delivered yet.
Although the ruling in the Circuit Court made special effort to
avoid language which would indicate the validity of software
patents, many people view Bilski as a deciding factor in the
legality of patenting software.[29]
See also
References
- ^
Nichols, Kenneth (1998). Inventing
Software: The Rise of "computer-related" Patents. Greenwood
Publishing Group. p. 15. ISBN
1567201407.
- ^
Välimäki, Mikko (2005). The Rise of
Open Source Licensing. Turre Publishing. ISBN
9529187793.
- ^ a
b
"Ways in Which Patents can
Help Your E-Commerce Business". World International Property
Organization. http://www.wipo.int/sme/en/e_commerce/pat_help.htm. Retrieved
2008-06-19.
- ^
"United States Constitution -
Article I". Cornell Law School. http://www.law.cornell.edu/constitution/constitution.articlei.html. Retrieved
2008-06-19.
- ^
"35 U.S.C. 112 Specification.
- Patent Laws". United
States Patent Office. http://uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_112.htm. Retrieved
2008-06-21.
- ^ 2165 "The Best Mode
Requirement - 2100 Patentability". United
States Patent Office. http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2165.htm
2165. Retrieved
2008-06-19.
- ^ "1120 Eighteen Month
Publication of Patent Applications". http://www.uspto.gov/web/offices/pac/mpep/documents/1100_1120.htm.
- ^
"Diamond v. Chakrabarty, 447
U.S. 303 (1980)". US Supreme Court Center. http://supreme.justia.com/us/447/303/case.html. Retrieved
2008-06-19.
; but in "in Re Bilski, CAFC 08/833,892
(2008)" (PDF). United States Court of Appeals for the Federal
Circuit. http://www.cafc.uscourts.gov/opinions/07-1130.pdf. Retrieved
2008-11-05.
dissents Mayer,
Dyk and Linn cite the full context as "A person may have “invented”
a machine or a manufacture, which may include anything under the
sun made by man, but it is not necessarily patentable under section
101 unless the conditions of the title are fulfilled.", with
different interpretations.
- ^
"Patents for Software-Related Inventions".
KuesterLaw. http://www.kuesterlaw.com/swpat.html. Retrieved
2008-06-19.
- ^
"Computer-Implemented
Inventions (CII)". European Patent Office. http://cii.european-patent-office.org/law_practice/index.en.php. Retrieved
2008-06-09.
- ^
"Intellectual property
protection is large field for small business". Office Depot. http://www.bizjournals.com/office_depot/consultants/?section=small_business_briefing&SID=ARRAY(0xd14f4f4). Retrieved
2008-06-19.
- ^
Jürgen Betten "Patentschutz von Computerprogrammen" GRUR 1995,
775-789
- ^
Daniele Schiuma "TRIPS und das Patentierungsverbot von Software
"als solcher" " GRUR Int 1998 852-858
- ^
"US Federal Trade Commission
2003 patent report" (PDF). Federal Trade Commission.
October 2003. http://www.ftc.gov/os/2003/10/innovationrpt.pdf. Retrieved
2008-06-19.
- ^
"The Basics".
NoSoftwarePatents.com. http://www.nosoftwarepatents.com/en/m/basics/index.html. Retrieved
2008-06-19.
- ^
Michel Rocard. "DRAFT RECOMMENDATION FOR
SECOND READING on the Council common position for adopting a
directive of the European Parliament and of the Council on the
patentability of computer-implemented inventions" (PDF).
EUROPEAN PARLIAMENT Committee on Legal Affairs. http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pr/565/565497/565497en.pdf.
, Swen Kiesewetter-Köbinger. "pacta sunt servanda" (in
german). JurPC Web-Dok. 100/2008. http://www.jurpc.de/aufsatz/20080100.htm#u15. Retrieved
2008-06-19.
- ^
James Bessen & Michael J. Meurer "Patent Failure: How Judges,
Bureaucrats, and Lawyers Put Innovators at Risk" Princeton
University Press, 2008, ISBN 978-0-691-13491-8: many people
have focused solely on patent examination quality as the objective
of reform, based largely on anecdotal evidence of trivial, obvious,
or otherwise invalid patents. Although we support efforts to
improve patent examination quality (large numbers of questionable
patents create conditions in which poor patent notice is
unavoidable), our analysis suggests that this is only part of the
problem and the patent system cannot likely be fixed by addressing
only this issue. Of course, the notice problems that we find central
to the poor performance of the patent system are not the only ones
looking for a remedy. We argue, however, that many proposed
reforms, including reforms directed toward improving patent
examination quality, are unlikely to be effective unless patent
notice is improved generally.
- ^
James Bessen & Michael J. Meurer "Patent Failure: How Judges,
Bureaucrats, and Lawyers Put Innovators at Risk" Princeton
University Press, 2008, ISBN 978-0-691-13491-8: It is possible,
however, that features of software technology make it particularly
susceptible to the patenting of obvious ideas, especially given the
legal doctrines of non-obviousness developed by the Federal
Circuit. For one thing, the general-purpose nature of software
technology—again, because the technology Abstract Patents and
Software 213 is abstract, similar techniques can be used in a wide
range of applications— makes it inevitable that techniques known in
one realm might be applied in another, yet the documentary evidence
that the Federal Circuit requires for a demonstration of
obviousness might not be published.
- ^
"Debunking the Software
Patent Myths". MIT Project on Mathematics and Computation
(Switzerland). http://www-swiss.ai.mit.edu/6805/articles/int-prop/heckel-debunking.html. Retrieved
2008-06-19.
- ^
"The European Patent Office
Homepage" (PDF). European Patent Office. http://annual-report.european-patent-office.org/2004/statistics/_pdf/tab_7_6.pdf. Retrieved
2008-06-19.
- ^
"Software patents need shelter
from the storm". ZDNet - Tech News. http://news.zdnet.com/2100-9595_22-5076320.html.
- ^
"Table 4: Patent Pendency
Statistics". United States Patent Office. http://www.uspto.gov/web/offices/com/annual/2005/060404_table4.html.
- ^
"The patent process".
European Patent Office. http://annual-report.european-patent-office.org/2005/business_report/patent_process/index.en.php#pru.
- ^
Stallman, Richard (2005-06-20). "Patent absurdity"]. The Guardian. http://www.guardian.co.uk/technology/2005/jun/20/comment.comment. Retrieved
2008-06-19.
- ^
Rubin, Steven (March 2007). "Hooray for the Patent
Troll!". IEEE Spectrum. http://www.spectrum.ieee.org/mar07/4943. Retrieved
2008-06-19.
- ^
Morag, Macdonald (2005-09-26). "Beware of the troll".
The Lawyer. http://www.thelawyer.com/cgi-bin/item.cgi?id=116783&d=122&h=24&f=46. Retrieved
2007-07-27.
- ^
Appendix of I re Bernard L.
Bilski and Rand Warsaw, Text of patent application serial number
08/833892, US Court of Appeals for the Federal Circuit,
2007
- ^ BPAI decision rejecting the
patent application (retrieved December 21, 2008).
- ^
The Bilski Case and the Future
of Software Patents(retrieved December 7, 2009)
External
links
Papers
- "Intellectual Property,
Computer Software and the Open Source Movement", United States
Congressional Research Service, March 11, 2004
- "Patent Reform: Issues in the
Biomedical and Software Industries Patent Reform: Issues in the
Biomedical and Software Industries", United States
Congressional Research Service, December 14, 2007
- Sequential Innovation,
Patents, and Imitation, by James Bessen and Eric Maskin, Discussion
paper, MIT (2000)
- Software Patents – Boon or
Bane for Europe? by Andreas Grosche, International Journal
of Law and Information Technology 2006
Neutral
sites
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in favor of patents on computer-implemented inventions
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patents
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