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Software patents under United States patent law The United States Patent and Trademark Office has granted patents that may be referred to as software patents since at least the early s. Bensonthe United States Supreme Court ruled that a patent for a process should not be allowed if it would "wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself", adding that "it is said that the decision precludes a patent for any program servicing a computer.
We do not so hold. Congress created a new court the Federal Circuit to hear patent cases. Following several landmark decisions by this court, by the early s the patentability of software was well established, and in the USPTO issued Final Computer Related Examination Guidelines stating that "A practical application of a computer-related invention is statutory subject matter.
This requirement can be discerned from the variously phrased prohibitions against the patenting of abstract ideas, laws of nature or natural phenomena" emphasis added. Critics of the Federal Circuit believe that the non-obviousness standard is partly responsible for the large increase in patents for software and business methods.
Purpose of patents[ edit ] Main article: Patentable subject matter For the U.
For Europe, there is no similar definition. Commonly four patent justification theories are recognised, as laid down for instance by Machlup in which include justice to the inventor and benefit for society by rewarding inventors.
Disclosure is required in return for the exclusive right, and disclosure may promote further development. However, the value of disclosure should not be overestimated: There is debate as to whether or not these aims are achieved with software patents.
Proposals[ edit ] In seeking to find a balance, different countries have different policies as to where the boundary between patentable and non-patentable software should lie.
In Europe, a number of different proposals for setting a boundary line were put forward during the debate concerning the proposed Directive on the patentability of computer-implemented inventionsnone of which were found acceptable by the various parties to the debate.
Two particular suggestions for a hurdle that software must pass to be patentable include: A computer program that utilises "controllable forces of nature to achieve predictable results". Supreme Court case of Diamond v. Diehr that stated that " Upholding an "insignificant postsolution activity" rule as per Justice Rehnquist 's ruling would also eliminate most business method patents.
Obviousness[ edit ] A common objection to software patents is that they relate to trivial inventions. Different countries have different ways of dealing with the question of inventive step and non-obviousness in relation to software patents. Compatibility[ edit ] There are a number of high-profile examples where the patenting of a data exchange standards forced another programming group to introduce an alternative format.
If it is discovered that these new suggested formats are themselves covered by existing patents, the final result may be a large number of incompatible formats. Creating such formats and supporting them costs money and creates inconvenience to users. Computer-implemented invention CII [ edit ] Main article: Software patents under the European Patent Convention Under the EPC, and in particular its Article 52,  " programs for computers " are not regarded as inventions for the purpose of granting European patents,  but this exclusion from patentability only applies to the extent to which a European patent application or European patent relates to a computer program as such.
Overlap with copyright[ edit ] See also: Software copyright and Copyright infringement of software Patent and copyright protection constitute two different means of legal protection which may cover the same subject-matter, such as computer programs, since each of these two means of protection serves its own purpose.
This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted.
Patents, on the other hand, give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.
In fact, one of the most recent EPO decisions  clarifies the distinction, stating that software is patentable, because it is basically only a technical method executed on a computer, which is to be distinguished from the program itself for executing the method, the program being merely an expression of the method, and thus being copyrighted.
Patents cover the underlying methodologies embodied in a given piece of software, or the function that the software is intended to serve, independent of the particular language or code that the software is written in. Copyright prevents the direct copying of some or all of a particular version of a given piece of software, but does not prevent other authors from writing their own embodiments of the underlying methodologies.
Copyright can also be used to prevent a given set of data from being copied while still allowing the author to keep the contents of said set of data a trade secret. Important issues concerning software patents include: Whether software patents should be allowed, and if so, where the boundary between patentable and non-patentable software should lie;  Whether the inventive step and non-obviousness requirement is applied too loosely to software;  and Whether patents covering software discourage, rather than encourage, innovation.
Software patents and free software There is strong dislike in the free software community towards software patents. Much of this has been caused by free software or open source projects terminating  when the owners of patents covering aspects of a project demanded license fees that the project could not pay, or was not willing to pay, or offered licenses with terms that the project was unwilling to accept, or could not accept, because it conflicted with the free software license in use.
Such actions have provoked only minor reaction from the free and open source software communities for reasons such as fear of the patent holder changing their mind or the license terms being so narrow as to have little use.
Meanwhile, Microsoft has reached similar agreements with Dell, Inc. Microsoft has also derived revenue from Android by making such agreements-not-to-sue with Android vendors.
However, this did not include most software developers and Unisys were "barraged" by negative and "sometimes obscene" emails from software developers.Open Source Pro (Personal) Business (C4B) For everyone (organizations as well)Personal, Named License for Individuals (not for organizational use): For Organizations - Chocolatey for Business (C4B): Free - No limit on machines: $96 / year - Up to 8 of your own personal machines.
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