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There is Intense Debate as to what extent such patents should be granted, if at all. SOFTWARE PATENTS VS COPYRIGHT Software patents are sometimes confused with Software Copyright . Under international agreements, such as the WTO 's TRIPs Agreement , any software written is automatically covered by copyright. This allows the copyright owner to prevent another entity form directly copying the source code. There is no need to register code in order to get copyright protection. If an author does register source code, however, they may collect Punitive Damages if their code is copied without a License . Copyrights may be enforceable for up to 90 years. Open Source license agreements are examples of how copyrights are used to encourage the public disclosure of improved versions of a particular piece of software. The license agreements prevent third parties from copying a given piece of source code unless said third parties agree to make their improvements to the source code available to the public under similar open source terms. Patents, on the other hand, give their owners the right to prevent others from copying a claimed invention. A software patent claim is a one sentence definition of a method or system for performing a given computer implemented invention. Patents are not granted automatically. Inventors must file Patent Application s in each and every country (such as Japan, China, US or India) or region (such at the European Patent Office) that they want protection in. These patent applications must disclose how to make and use the invention in sufficient detail so that another person of ordinary skill in the art can reproduce the invention without undue experimentation. If it is not self evident, then a patent application must also disclose what practical utility an invention has. Patent applications also have one or more claims which set out the boundaries of the invention that the inventor asserts is his/her original and non-obvious invention. Most, but not all, countries or regions then assign one of their Patent Examiner s to the case to determine if the inventor is entitled to the patent claims they are requesting. If so, then the claims are allowed and upon payment of a fee, a patent issues. Different countries have different standards for allowing patents. This is particularly true of computer implemented inventions. Thus a particular computer base invention may be patentable in one country, such as the US, but not patentable in another country, such as the member states of the European Union. Once a patent issues in a given country, the patent owner can prevent others from making, using or selling the claimed invention in that country. Patents are generally enforceable for up to 20 years. The Unisys US LZW patent is an example of a software patent. It covers the GIF method for data compression. This patent expired on June 20, 2003 and thus Unisys can no longer prevent third parties from practicing the claimed invention in the US. Patents and copyrights form complementary means for protecting software innovations. Patents cover the underlying methodologies embodied in a given piece of software, independent of the particular language or code that the software is written in. Copyrights protect against the direct copying of some or all of a particular version of a given piece of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies. Copyrights can also be used to protect a given proprietary set of data from being copied while still allowing the author to keep the contents of said set of data a Trade Secret . HISTORY The first software patent ever granted is probably a patent for a "computer having slow and quick access storage, when programmed to solve a linear programming problem by an iterative algorithm, the iterative algorithm being such that (...)" applied for in s. The USPTO has traditionally not considered software to be patentable because by statute patents can only be granted to "processes, machines, articles of manufacture, and compositions of matter". In particular patents cannot be granted to "scientific truths" or "mathematical expressions" of them. This means that most of the fundamental techniques of software engineering have never been patented. The USPTO maintained this position, that software was in effect a mathematical algorithm, and therefore not patentable into the 1980's. The position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond V. Diehr . The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could. This ruling wasn't as straightforward as many would have liked, forcing many electronic device makers into the courts to establish that their inventions were in fact patentable. {Link without Title} Due to different treatment of federal patent rights in different parts of the country, in . In Europe, the EPO (and other national patent offices) has been issuing many software patents since the 1980s, although (or since) Article 52 of the European Patent Convention excludes "programs for computers" (Art. 52(2)) but only to the extent it relates to activies "as such" (Art. 52(3)). See Software Patents Under The European Patent Convention . In India , a clause to include software patents was quashed by the Indian Parliament in April 2005 . The recent expansion of the Internet and E-commerce has led to many patents being applied for and being granted for related software and business methods. There have been several successful enforcement trials in the USA. LAW Jurisdictions Substantive Law regarding the patentability of software and computer-implemented inventions, and Case Law interpreting the legal provisions, are different under different jurisdictions. The national jurisdictions relating to software patents in Europe and in the European Union are not harmonized even though some harmonization has been brought into the national jurisdictions in the 1970s and 1980s. Interpretation of the substantive law varies to some extent from state to state. In 2002 , in order to harmonize the national laws a step further, the EU Commission proposed a Directive On The Patentability Of Computer-implemented Inventions , but settling the exact terms of the Directive has proven highly controversial. In 2003 , the European Parliament deeply amended the original draft from the Commission. Two years later, the Council Of The European Union (i.e. national government ministers) mostly reinstated the original text, but the text was eventually rejected by the Parliament on July 6, 2005. The proposed directive will not become law. Software patents under Multilateral Treaties :
Software patents under national laws:
Scope of software patentability As noted above both the EU and the US have traditionally restricted the ability to patent software. This has led to several proposals for some very narrow definitions of what software actually is. For example:
A further difficulty in drawing a clear boundary between software patents and other patents may come from the fact that a Patent Claim can be written so as to embrace many different implementations (some using purely mechanical or electrical means, others using software), for instance by using functional features under certain jurisdictions (for example, "means for controlling"). The expression "computer-implementable inventions" has been coined to refer to this reality. Additionally, under the so-called Doctrine Of Equivalents and its analogues, a patent that on its face does not appear to require software can be infringed in certain circumstances if software is used as an equivalent of (that is, to substitute for) a non-software element, making even more difficult to draw the boundary. Software patents specifics Apart from generally accepted and well known advantages of the ordinary patents, software patents have several specific features, creating unwanted effects ( {Link without Title} ). The patent supporters suggest various methods to minimize such effects. = Patents against compatibility Patenting data exchanging standards frequently forces another programming group to introduce an alternative format. For instance, the PNG was introduced to avoid the GIF patent problems, or the OGG was introduced to avoid the MP3 patent problems. If this new suggested format is patented again, the final result may be a large number of incompatible formats. Creating such formats and supporting them costs money, creates inconvenience to users and even threatens to split the Internet into several partially incompatible sub-networks ( ASF and non- ASF , for instance). = Defensive patents Some large companies ( Oracle Corporation , Red Hat ) have clearly said that they do not need software patents to prevent others from using their ideas (the main purpose of the patent), but must accumulate such patents with the purpose of defense against the possible attack. This means that such companies are forced to buy the work of the patent management institution, rather than investing that money into software improvement. Taking these and other effects into consideration, the EU Parliament rejected the proposed Software Patent Directive in July 2005 with the vast majority of votes. Computer-implemented invention The term "computer-implemented invention" was put forward by the , Computer Network or other programmable apparatus and having one or more '' Prima Facie '' Novel features which are realised wholly or partly by means of a computer or Computer Program s." The term has been criticized as a politically motived obfuscation manoeuver [http://elis.ugent.be/~jmaebe/swpat/cii.html . The German chancellor Schröder is quoted as saying "the manuscript is titled with 'software patents' - wait, I may no longer say that - well the 'protection of computer-implemented inventions'" [http://www.heise.de/tp/r4/artikel/17/17825/1.html]. The terms "software-enabled invention", "software-related invention", "software-operated invention" are also sometimes used to convey a similar meaning. Litigation Several successful litigations show that software patents are enforceable in the USA. For example, Eolas was awarded $565 million from Microsoft. See List Of Software Patents for more examples. So far there does not appear to have been any case before a European Court where infringement of a software patent has been proved and damages have been awarded. However, there have been a few court cases where the validity or not of a patent involving software has been the question, where in some European countries a national court has ruled either that a particular patent is valid (eg Germany); or that other patents involving software could be (eg UK). See Software Patents Under The European Patent Convention for details. PRACTICAL EFFECTS OF SOFTWARE PATENTS Patenting software is widespread in the US. The number of patents is difficult to quantify but as an indication as of January 2005 Microsoft alone has 6,130 ''issued'' patents which are presumably mainly software patents (US PTO Search). Microsoft expects to file 3,000 new applications this year. IBM received 3,415 patents in 2003, but many of these do not relate to software. Most large software companies have Cross-licencing agreements in which each agrees not to sue the other over Patent Infringement s. For example, Microsoft has agreements with IBM , Sun Microsystems , SAP , Hewlett-Packard , Siemens AG , Cisco and recently Autodesk ( IDG News Service ). Microsoft cross-licensed its patents with Sun, despite being direct competitors, and with Autodesk even though Autodesk has far fewer patents than Microsoft. It appears that large companies prefer to avoid expensive and uncertain litigation rather than attempt to enforce patents against other large companies. Indeed, being able to negotiate such agreements is a major reason that companies file "defensive" patents. Some large companies enforce patents. For example, in the early 1990s IBM started an aggressive licencing program which generated over $2 billion a few years later ( Newsweek Article ). Licences are often charged as a cost per unit sold or at a few percent of gross sales (not profit), and this license "tax" can become a major burden when several different organizations claim patent violations. A new line of business has emerged that mainly focusses on obtaining and enforcing software patent rights rather than building and marketing usable software systems. Some companies such as Intellectual Ventures have the backing of large corporations while others such as Acacia Technologies are independently enforcing patents. High prices have been paid for software patent portfolios, eg. Commerce One . Walker Digital in Stamford, CT has filed for hundreds of patents in hopes of forcing infringers to take a license from them. Some people who are against software patents call this " Patent Troll ing". Many Free Software / Open Source developers fear that software patents will prevent them creating software. Such projects generally have no defensive patent portfolio of their own, no mechanism to pay royalty fees, and have smaller budgets. This has affected several projects ( FFII Effects of Patents ). Several companies (eg. IBM) have licenced parts of their patent portfolio to open source products or more generally, particularly to encourage standards. However, this is a tiny fraction of all software patents, and does not give the open source community a defensive patent portfolio to use to negotiate cross-licencing agreements. Novell has gone further by committing to actively use its patent portfolio against companies that bring actions against certain open source products. The " Inventive Step " requirement for software patents is viewed by some as being quite low. This allegedly makes it relatively easy to obtain a software patent. The quality of assessment also seems to be quite low, with well known Prior Art often ignored. This has resulted in some software patents being rejected upon re-examination, eg. the Microsoft FAT Patent . Id Software and its head John Carmack pursue a strategy of avoiding software patents at all. In Carmack's words "The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." Ironically, Carmack found himself on the receiving end of a patent dispute when the programming technique known as " Carmack's Reverse " turned out to be patented by Creative Labs! Creative proceeded to use this patent to their advantage by forcing the game Doom3 to more closely support Creative products on threat of litigation. It has since been discovered that Carmack himself had prior art in the source code of Quake3 and id Software would have likely won any litigation and invalidated the patent at the expense of Doom3 being delayed, which they could not afford. Clearly, this particular software patent (US 6,384,822) had the effect of discouraging independent discovery. Software engineers rarely search patent databases and applications looking for interesting new patents. This is because of 1. the lack of inventive step in many software patents, 2. the obscure language with which software patents are described, and 3. the risk of being assessed for triple damages for knowingly infringing one ( Federal Trade Commission ). Many infringements are for independent inventions, which many programmers lament their loss of freedom to innovate. A programming problem is usually solved through logic and application of mathematical laws, not invention, making risky ground for software companies. There are several Economic Studies that assess whether software patents actually encourage or discourage innovation. SEE ALSO NOTES
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Economic studies
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