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Software Patents

Software patents: protecting programming

Software patents are one of, if not the, thorniest subject for patent authorities. Particularly the European patent authorities, who are still wrangling over it. A 1973 law prevented software from being patented, but as computers became more important that became less practical. Subsequent revisions have opened the door to many patents (tens of thousands in fact). But software is still a highly contested area in patenting. On one side is the view that a computer program is an unpatentable abstract concept like a mathematical formula. The raison d'etre of a patent is to reward and thus encourage the time, effort and possibly money invested in an invention. Simply having a good idea, the argument goes, does not meet these criteria. The flip side is more complicated, but it's to do with the view that a computer is a machine like any other and a program which improves its functioning is no different to any other technical improvement. Things are a bit (but not much) clearer in the US , which has influenced European law on the subject.

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The feared effects of a proliferation of software patents are, however, easy to understand. They are the same as the fears for other highly-patentable areas of innovation such as biotechnology. Basically the argument goes that if there is a rush to patent software ideas, it will restrict rather than encourage innovation: you won't be able to write a computer program without infringing someone else's patent. What's more, since patents are expensive and laborious to win, it's argued that they naturally favour the big guy - again, an enemy to innovation. It's a big issue because the practical applications of software are now all pervasive. Computers are used everywhere.

However, it would seem irrational to totally prevent the good idea behind patents - to foster creativity and enterprise - from being used in fields as important as computing and medicine. In fact, it might be essential to encourage investment. We live in a world of big guys, and they have as much, if not more, influence over some aspects of world affairs as governments do. Sort of ironic considering the governments are the ones granting the patents. It's a tricky business, and that's why patent laws are changeable and confusing.

The issue of software patents is an illustration of one of the extremes of patenting law. The biggest extremes though are found in that already extreme area of bioscience, genetics. Genes are analogous to computer software because they are the information which programs the most complicated machines of all - living organisms. 'Prophetic' - speculative - patents are applied for on the basis of a discovery's potential. Aside from the hundreds of thousands of patent applications for genes and gene sequences themselves there have been applications for gene-based therapies before the treatments have even been developed. Mind-boggling. But governments can theoretically override patents for the public good. They, after all, are the ones who awarded the privilege in the first place. So perhaps patent-hungry corporations need to be a bit careful not to go too far. Perhaps. For more information about the laws on software patenting consult the World Industrial Property Organization site (www.wipo.int), the European Patent Office or the US Patent and Trademark Office (www.uspto.gov). And for a taste of one side of the software debate, try the UK Association for Free Software.