Issue 1, 28th October 1995: Software Patents
By Sonya Clarke.
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.
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.
