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  • Rinku Yadav

State of Software Patents Around the World

Technology is the cornerstone of the digital world and abundant of its practicality rests in the software. As a matter of fact, all economic factors are becoming conditioned to software to leverage growth. This has important implications for IP laws.


For many years now there has been a continuous debate on software patents as to which software is patentable and which are not. Till the late 20th century, the performance of various restructures, specifically relying on semiconductors, were predominantly anticipated on hardware modules. Lately the focus has been migrating from hardware products to software products. Not only this, every country has its own set of rules to define and analyze the patentability of software.


United States

US Supreme Court came up with a 2-step process to justify the software patentability - Firstly that a computer implemented patent application should not be an “abstract idea” but if it is, then the patent application must assert some segments that “transform” the innovation into a claimed patent invention. (Alice v. CLS Bank, 134 S. Ct.2347 (2014)).


United States Patent and Trademark Office (USPTO) in 1996 then stated “a practical application of a computer related invention is statutory subject matter. This requirement can be discerned from the variously framed prohibitions against the patenting of abstract ideas, laws of nature or natural phenomenon.”


There were discrete landmark rulings in respect to rights of patent owners issued by the US Supreme Court and the Court of Appeals for the Federal Circuit.

  • DDR Holdings, LLC v. Hotels.com, L.P. (Fed. Cir. 2014)

DDR Holdings accused Hotels.com and distinct litigants in the United States District Court for the Eastern District of Texas of infringing US Patent Nos. 6,993,572 and 7,818,399. The 2014 decision of the Federal Circuit substantially justified software related patents. In this, one of the challenged patents related to techniques for website development. The patent’s claims conveyed the problem of retaining website visitors who could otherwise be enthralled away from a website by clicking on the advertisement. According to the Federal Circuit, considering the invention was “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks”, it faced challenges re the requirements of 35 USC 101. “Although the claims address a business challenge, it is a challenge particular to the internet”, the court held.

United Kingdom

UK Patent Law affirms that if computer associated innovation or programs endows the art technical in nature, then that development would be patentable. Some signposts act as guidelines while building laws or norms for software patents.

  • Whether the claimed technical effect has a technical effect on the process which is carried on outside the computer.

  • Whether the claimed technical effect operates at the level of architecture of the computer, the effect is to be produced irrespective of the data being processed or the applications being run.

  • Whether the claimed technical effect results in the computer being made to operate in a new way.

  • Whether the program makes the computer a better computer in the sense of running more efficiently and effectively.

  • Whether the perceived problem is overcome by the claimed invention as opposed to merely being circumvented.


Now if the claimed innovation fails in all these guidelines, the software would not lead to patentable software.


Germany

German Patent Law asserts that a computer administered invention is the one which includes the use of computer, computer network, or other programmable apparatus, the innovation having more than one feature which are comprehended wholly or partly by expedient of a computer program. This law states that computer programs without “technical contribution” are singularly verbal functions and are sheltered by copyright. However, a computer implemented invention is patentable if it has technical character.


People's Republic of China

Chinese Patent Law discusses “No patent shall be granted to rules and methods for mental activities.” Since the computer program falls in the bracket of “rules and methods for mental activities”, so it's not patentable and if the subject matter “adopts technical means, resolves a technical problem and creates a technical effect”, then it would be in agreement with the patentable subject matter under Chinese Patent Law.


India

Indian Patent Law states that for a software to qualify for patentability, it should satisfy 3 major components – Novelty, Inventive Step and Industrial applicability. In addition to this, the invention should be a patentable content and its declaration must be in terms with standards of patent application. More so, patent law says “a mathematical or business method or a computer program per se or algorithms are not inventions and therefore not patentable.” (Section 3 IPA, 1970).


South Korea

Section 2.2 of guidelines looks for “concrete means” to justify and adhere to the patentability of software and thus it says that the innovation or invention should include both hardware and software. This law states that computer innovations can be claimed if it is in the following forms

  • Apparatus (device)

  • Process (Method)

  • Computer readable medium

  • Computer program stored on a medium

It would be hard to believe that the debate on patentability of software would die down in at least the next decade. Considering the astonishing swiftness at which technology is growing, blackballing software from patent protection and immunity might hamper the technical build outs and choices thereby hampering technology alliance. As digitization sprints its way into various strata of lives, it is increasingly important for governments to reconsider the present play field and to ponder over the eminence of patent protection for technical applications that incorporate software implemented innovations and inventions. Patent laws offer the most powerful structure for protecting an invention increasing the range of safer and efficient everyday products. Patent protection for software therefore can generate conditions that encourage innovators and engineers to increase resources for software development and improve the state of the art.


Copperpod provides patentability search services which gives a clear picture of the state of the art and helps navigate away from a potential prior art. We have delivered 200+ prior art search reports on multiple technology domains such as Telecommunications, Cloud Computing, Life Sciences, Cryptography & Security. As part of patentability searches, Copperpod’s technical team also provides suggestions to widen the scope and maximize future licensing opportunities for the patent, while navigating away from potential rejections due to software patentability laws around the world.


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