Can software be patented?

Can software be patented? If so, in what form?

This post provides some general background on the issue and briefly considers two pending cases in Europe and the US.

The patentability of software has important consequences for the way in which individuals and businesses protect, and make money from, their creations under the law.

Nearly all modern inventions make use of a computer, whether in their design, construction or operation. The Internet is simply a network of computers.

On one side of the debate are those calling for the abolition of patents for software; on the other side are those calling for clearer protection.

Quick Crib Sheet

A patent is a property right granted by a state which allows its holder to prevent third parties from commercially exploiting an invention for a set period of time.

The enforcement of a patent is governed by national law.  The procedure for obtaining a patent is governed by at least one of national law (e.g. the UK Patents Act), regional treaty (e.g. The European Patent Convention) and international treaty (e.g. The Patent Cooperation Treaty).

The era of revolution, both industrial and political, gave birth to substantive patent law.  Modern patent law was codified in the post-war period.  British, European and international codes were drawn up in the 1970s.

Since the 1970s, the growth in computing has been exponential.

From this:

Computer - 1970s c/o Ecksemmess

to this:

iPhone c/o Masaaki Komori from Tokyo, Japan

Under British and European patent law, a patent cannot be granted for “business methods” or “computer programs” “as such”.  However, certain inventions may be patented as “computer-implemented inventions” (CIIs).  The law in the UK and Europe should be harmonised but in practice differs on points of interpretation.  This prompted Lord Justice Jacob, in the Court of Appeal, to ask the European Patent Office for clarification in 2006.  The European Patent Office refused the request.

In the US, case law developed at the turn of the last century was used to demonstrate a “business method” exclusion for patents.  This changed in the late 1990s when, under pressure from the dot-com boom, the US Patent Office began to grant patents for “business methods” implemented using a computer.  The explosion of such patents, which were considered by some to be of “potential vagueness and suspect validity”, has recently seen a legal backlash.

Cases:

Europe:

Points of law are considered by the Enlarged Board of Appeal.  On the 22 October 2008 the (British) President of the European Patent Office referred a series of questions to the Board.  These questions were formulated to seek an answer to the question above and provide guidance for national harmonisation.  The Board may dismiss the referral.

The referral was rigorously debated by the high-tech community.  Amicus curiae briefs were filed by many well-known companies, including Apple, IBM, and Philips, as well as by groups such as the Foundation for a Free Information Infrastructure and the Pirate Party.

US

The US Supreme Court is presently considering a case concerning a 1997 patent application filed by Bernard Bilski on a business method for hedging financial trades (known generally as “Bilski”).  The application was rejected by the U.S. Patent Office and this decision was upheld by the Federal Circuit Court.  As in Europe, the case has ignited fierce debate; amicus curiae briefs have been filed on behalf of, for example, Microsoft, Google, and Bank of America, as well as associations both for and against patents for software.