Can Computer Programs Be Patented?

You may be wondering, “Can computer programs be patented?” and you are not alone. There is an entire industry devoted to this topic. In this article, we’ll examine the criteria for patenting software, the value of software patents, and the limitations of computer software patents. In addition to answering this basic question, we’ll discuss the advantages of software patents and the legal aspects of obtaining them. We’ll also discuss the patentability of computer programs in general.

Patentability of computer programs

While the EPC 1973 explicitly excludes patent applications on computer programs, certain examples suggest that the term “computer program” is open to patentability. For example, a software program could be patented if it has a technical effect that goes beyond the “normal” interactions between hardware and software. To determine whether a computer program is patentable, the definition of “as such” must be clarified. This may help identify programs that are subject to patentability.

Despite its limited patentability, software programs and computer programs can still qualify as a business method. Recent rulings in the Federal Circuit and Supreme Court have clarified this issue. Previously, a business method could not be patented. However, the Supreme Court has overturned this rule in two recent decisions. In 2008, Merrill Lynch was awarded patents for a new financial system it developed. That decision was the result of a joint parliamentary committee’s work to clarify the language of “per se.”

The European Patent Convention’s Article 52(2) lists certain materials that cannot be patented as a separate invention. However, the EPC 2000 recognizes the technical contribution of computer programs. This ruling has paved the way for patenting of software. While the EPC 2000 has many provisions, a computer program can be patented if it has an embedded technical feature. If the program does not have these features, then it is not patentable.

In the United States, computer programs are not considered inventions under the TRIPS agreement. Nevertheless, in the European Patent Convention (EPC) and the U.S. Patent Office (USPTO) have explicitly excluded computer programs as patentable subject matter. In other words, a computer program cannot be patented if it lacks technical character. But this doesn’t mean that it can’t be patented, provided that it provides an inventive solution to a problem.

Software inventions can be patented, although the use of patents on computer programs is controversial. In addition to causing monopolies, software patents can also hinder new product development. The patenting of software could prevent developers from creating open source software. Thus, it is essential to seek judicial precedents for software patents to gain certainty about whether a program can be patented. Further, judicial precedents are essential to harmonize the Indian Patent Office procedures and foster the growth of the software industry.

Criteria for granting patents

The US Patent and Trademark Office (USPTO) has made it increasingly difficult to patent computer programs and software. Patent eligibility requirements are complicated, and there is no clear-cut standard of what makes an idea patentable. Patent eligibility for software requires that the software or program solves a problem that is “necessarily rooted” in computer technology. Moreover, the claim must add something beyond the abstract idea itself.

In the United States, a recent case law emphasizes that a software application must improve the functionality of a computer, or perform an unconventional task. While this trend suggests that software is technically a new invention, this rule does not help in real-world analyses and does not correspond with the way software operates in modern technologies. For example, all software tends to improve the functionality of the computer. It allows computations previously unavailable or require fewer computing resources.

While the USPTO sets the standards for granting patents on computer programs, the European Patent Convention follows similar requirements. The subject matter must be “new and inventive”, have industrial applicability, and be technically valuable. Furthermore, the invention must have a technical character, such as an industrial application or technical teaching. The ECPTO ruled that a computer program could not be patented if it simply identifies a specific software component or code.

The EPO has a special examination process for determining whether a claim is technically based. The examiner will focus on the technical aspects of the claim, and exclude non-technical elements unless they contribute to a new method or process. Therefore, it is extremely difficult to determine the inventive step of a claim without reference to any prior art. This examination process is known as the ‘any hardware’ approach.

Considering the importance of software-enabled innovation, the USPTO’s patent laws should reflect this trend. Software contributes a significant portion of the digital economy and is growing more dependent on software than ever before. Until the late 20th century, technological innovation was based primarily on hardware, not software. However, the advent of sophisticated semiconductor technology has changed the landscape. The result is a fundamental shift in technical functionality from physical objects to software. However, despite the high-tech nature of software innovation, US patent laws have not embraced software inventions as adequately as other novel technological advances.

Value of software patents

The Value of Software Patents is often overlooked by business leaders, yet software patents can provide a competitive advantage and generate revenue for an organization. However, most businesses do not take advantage of these valuable assets, and they do not use the patents to protect themselves from competitors. This article explores the value of software patents by examining whether these assets are transferred to support true technology transfer or merely transfer of liability. The article finds that while many software licenses reported to the SEC between 2000 and 2015 support true technology transfer, a large number of patents are sold for protection from litigation and general operating freedom.

Prior to the creation of the software patent system, the issue had received very little attention from the industry. The BT v. Prodigy case was a classic example. Microsoft had sought to acquire Stac’s compression technology and included it into its operating system. However, Stac sued Microsoft for US$120 million. This case serves as an example of the impact of software patents on small businesses. It shows how important it is to have an intellectual property policy to protect your business.

Aside from proving a business case, software patents can also protect a company’s IP. While securing a software patent takes several years, it is useful for marketing purposes and attracting investors. A software patent can demonstrate that the idea is truly innovative and provides a distinct advantage over competitors in the market. By securing a software patent, a company can prove the novelty of its technology and the depth of its resources.

While this IPI study raises many questions about the economic value of software patents, it lacks further empirical research. Further, it is important to note that the European Commission has not undertaken a similar study. In addition, the study is limited to a small-scale survey, which is hardly reliable enough to prove the value of software patents to small businesses. However, the directive acknowledges the study and calls for greater education and awareness of the patent system among SMEs.

Limitations of software patents

One of the most common criticisms of software patents is their difficulty in identifying prior art. Although patent examiners can review previously issued patents, they will often miss software inventions that are preexisting. Many software patents have been issued as bad patents because of this problem. These patents are often invalid and limit innovation. Here are some ways to identify prior art in software and avoid being the victim of a bad software patent.

First, the current system is far too complex to understand. For example, patents for ‘electronic games’ were invalidated in a recent case against Intellectual Ventures. This was a victory for the free-speech community, which had been deprived of its content in the past. Software patents can also be absurd. While they are a temporary fix for a broken legal system, they often serve as a means to extort money from software creators. Moreover, they are a form of patent trolls, who seek to take advantage of infringers.

The JMRI-Katzer case exemplifies the problems of software patents in the real world. Katzer’s company filed for software patents on an OSS project, and they were able to get it invalidated in the US court system. This case has bolstered the idea that FLOSS licenses are valid. In the end, Katzer lost. The Court ruled that Katzer’s software patents were invalid and that FLOSS licenses were legal.

Another problem that stifles software innovation is the “facade server” limitation. Many patents describe abstract goals, without describing specific methods. This problem is made worse by the fact that most software patents are not written in a written description. In other words, a software patent can’t be issued for a product that already exists. It can’t protect a product that isn’t even useful.

Overbroad software patents overstate the true novelty of an invention. Overclaiming should lead to patent application denials. Other issues that should prompt patent denials are failure to enable, failure to satisfy the written description requirement, and obviousness. Because the PTO doesn’t aggressively screen patent applications, too many bad ones slip through the cracks. That’s why so many software patents are invalid. There are many more reasons to oppose software patents.