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Software patents are here to stay

Michael McLaughlin | April 29, 2010
Rumours of their demise were greatly exaggerated.

We discussed in a previous posting the fact that patents for computer-implemented inventions (a.k.a. software patents) are controversial. There are many reasons for this and it would take several blog postings to cover this in any detail. Just one reason contributing to the controversy is that the written laws of many countries explicitly exclude computer programs from patentability; that is, a computer program is a thing which one cannot get a patent for. Practically speaking, the exclusions are applied fairly narrowly and the laws of most countries provide a legal framework within which patent applicants can obtain patents for their software inventions.

You may have heard of the Amazon one-click patent which was fairly controversial in itself. The technology of the patent is implemented on the Amazon website and, according to some reports, Amazon licensed the technology to Apple, which went on to implement it in the iTunes store. So the technology is in fairly widespread use.

The patent relates to an online purchasing system where the idea was basically for a user to make one click of a mouse in order to purchase something from the website. So, not only was this a software patent, it also had a business context perhaps leading to extra controversy. Methods of doing business are another thing which are not supposed to be patentable in some countries although patents for these may still be granted, subject to passing certain legal tests.

The United States has, at least until a few years ago, been one of the easier countries for obtaining software and business-related patents. The Amazon patent was challenged in the US where it was subjected to a re-examination of the invention. Just a month or two ago, the United States Patent and Trademark Office (USPTO) confirmed the pattern was to be maintained, although the scope of the patent has been narrowed.

The corresponding patent in Europe has just been reconsidered by the Opposition Division of the European Patent Office (EPO). The Opposition Division of the EPO is the division which hears cases where patents are being opposed; that is, where one party wishes to revoke another party's patent. This was an appeal by Amazon against an earlier decision from the Opposition Division that the patent should be revoked. The EPO will grant patents for software inventions which, essentially, solve a technical problem by technical means.

In Europe, only technical steps of an invention can contribute to the inventive step of the invention a major criterion which has to be satisfied when assessing the patentability of an invention and an analysis of what is and what is not technical can be critical in determining whether a patent can be granted.

 

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