Issue 1, 28th October 1995: Software Patents
ExNet On-line:


European links, law, and lawyers---on and off the Net

By Sonya Clarke.

Topical, Search Tools, Journals, Bodies, Other.


The All England Law Reports, of cases dating back to 1936, are now available on CD-ROM from Butterworths.

International law firm mergers are suddenly fashionable---rumoured links between Freshfields and the US firm Davis Polk Wardell and the joint venture between Linklaters & Paines and Schon Nolte Finkeinberg & Clemm of Frankfurt are indicative of the increasingly international nature of legal practice away from the High Street.

The UK Young Women Lawyers Group held a constructive debate on training opportunities in the profession on 19 October with speakers from London firms Freshfields and Stephens Innocent, The Trainee Solicitors Group and the Bar. Watch here for future events.

European Patents for Software

The minute-by-minute expansion of IT has revealed large holes in legal protection of software in Europe. European patents do not apply to software products, forcing developers to depend on copyright protection which is woefully inadequate for the new ideas behind computer programs. Compounding the problem are discrepancies between patent laws throughout Europe. Plans for a European Union patent, targeted for completion in 1993, have stalled, leaving European states very much to their own legal devices in deciding what is patentable and what is not. The UK is even less enlightened than the European Patent Office (EPO) on the question of software patentability.

Until recently, the US was also slow to recognise the need for heavier protection of software. Now, due largely to the irresistible force of IT, American case law has held that any software can be patented if it involves the inventive step required for patentability. Only a program containing the purest mathematical algorithm would be excluded by the US Patent Office merely because it was software. A large number of US software patents exist and most court actions for infringement have gone the way of the patentee.

Back in Europe, by comparison in the throes of a kind of patenting Dark Ages, software patents are limited to products that have a ``technical effect.'' This really means that software that presents information is not patentable but innovative products that involve software may be. They must make a technical contribution to state of the art of IT. If this sounds unclear it is because technical effect is a far from clear concept. It detracts from the question that should be foremost whenever patentability is at issue: Is the product an invention?

Good news for software developers who have tried stretching copyright to its limits to protect the innovative processes contained within their products is that things may be changing. The EPO claims in its Annual Report that it has rejected only a hundred software-related inventions on the basis of its own muddled concept of ``technical effect.'' It is apparently keen to interpret the doctrine broadly. The British Computer Society has produced a consultation paper that strongly advocates a change in the law, and the concept that any truly-inventive product is patentable has been internationally embraced in GATT.

There are arguments against a software patent free-for-all, in particular that it will stultify innovation and penalise small companies. The latter was not the case when the giant Microsoft lost to tiny patentee Stac Electronics. But the demand for software patents makes any pros and cons an academic concern. Seemingly non-patentable software can be dressed up to look like it has a ``technical effect'' and the EPO has granted over 11,000 software patents. Europe would be wise to bring law in line with practice. Ultimately the law itself, rather than ingenious ways of getting around it, should protect software development and keep Europe up with the market leaders.


Quotes on software patents.
Search Tools (search by word)
WebCrawler, Yahoo, Lycos, InfoSeek.
Journals and Magazines
Journal of Current Legal Issues (Newcastle University).
European Parliament (complete with maps, a history, and a description of its powers), Global Arbitration Mediation Association (legal forms and links to other legal sites), Lexis-Nexis (law-information services).
Other links
Yahoo law section, Law Enforcement Home Page (amusing examples of American neuroses), Jeffrey Dahmer's Brain (complete transcript of the battle between criminal psychology research and Dahmer's dad for anyone suffering OJ withdrawal).

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Copyright (c) ESL 1995.