Can Software Be Patented?

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This question has long been the subject of debate. Patent wars are being waged by large IT companies valued at billions of dollars, with no sign of ending.

John of Utynarn had an idea, and the idea was so good that the King of England himself had its rights protected. This glass maker had invented a method for manufacturing window glass for the British college of Eton. Henry VI awarded him with 20 years of monopoly rights for this technology in 1449. In return, John was only allowed to impart his techniques to people born in England. This moment in history is recognised as the first English patent awarded.

Description: Can software be patented?

Can software be patented?

It was obvious that, from here on, John of Utynarn laid the groundwork for what that will become the granting of patent rights. Today, the same thing applies to millions of patents worldwide. The computer age began 500 years after John received his patent, which begs the question: can software be patented? Till today, the answer to this is vague.

The 26th of May 1981 is considered an important date in the USA. This was the day when programmer-attourney Satya Pal Asija received patent protection for his program, "Swift-Answer". He had written this software in 1969 itself, but became an attorney when he couldn't get a patent for his software. It became the first ever software patent granted in the USA.

Trivial Patents are stifling innovation and restricting economy

Nevertheless, the USA remains a hotspot for the most number of patent disputes. Starting from the 70s, we keep seeing a succession of patent processes, approvals and appeals. The complicated history of judgments delivered in such cases makes it difficult for the situation to become any clearer. The fine line of justice, in this case, is a zigzagging mess. Recently, the US Supreme Court made it admissible for software patents to be granted, but it did little to clarify the actual conditions that are necessary for such patents to be granted. The line, it seems, is barely straightened.

Description:  graph of software patents, 1971 - 2005

 graph of software patents, 1971 - 2005

The situation in Europe is similarly confusing. The European Patent Agreement from the 70s says that programs written for data processing are to be excluded from patent protection, "as such". The only thing is what does "as such" mean? The European Patent Office ruled in 1998 that software has to result in a "further technical effect" in order to be eligible for a patent, which means that it has to have an effect beyond the mere "working" or "functioning" on the computer. In 2005, the European Parliament refused to attempt to make the rules somewhat clearer. Critics had complained against the guidelines, saying that they ought to have allowed the entire gamut, type and library of software to be patented.

There is, however, another argument from the left wing pertaining to the act of software-patenting. A number of critics opine that patents may have a restrictive effect on software development, further innovation and also its related economy. They claim that open sourced programs are a better practice (in reality, larger IT firms are the ones championing the cause of software patents), which allows for better and more widely available software. Critics are also upset by the fact that trivial patents are granted for even the most widely distributed or commonly used programs. For example, in the USA alone, Apple has a patent for the automatic updating of a software, while Microsoft has a patent for scrolling pages, as well as the "double-clicking". Adobe has a patent for "Tabs" -- multiple windows integrated into one, and IBM recounted that it received a patent for the "thickness of lines".

Adobe's patent is active in both the US and the EU. In reality, patents are not granted in a uniform fashion. Amazon established another route by patenting its "1-Click-Buy" feature in the USA, but not in the Europe. In this case, the patent applies to a purchase wagon or trolley in the Internet, and also a graphical Progress Bar. These peculiar examples are a contrast to patents like Microsoft's FAT file system, which validity was corroborated by the Federal Court of Justice in 2010.

Description: Android patient licensing and litigation

Android patient licensing and litigation

Large IT firms continue to argue that copyright protection is not enough, as it only protects the development of the software -- which means that only the source code is protected, but not the idea. In a nutshell, this is concerns a huge amount of money. It explains how patents for the MP3 standard held by the Fraunhofer Institute, earns hundreds of million Euros for the company every year. Patents are, first and foremost, the ammunition for IT companies to fight their battles. One such battle is primed for action in San Francisco, where it has to be decided if Google will be paying a huge amount of fine to Oracle for infringing its patents on the Android operating system. Facebook, too, recently invested billions by purchasing IBM and AOL patents. We neglected to mention Google's 12 billion-dollar for Motorola Mobility. These deals are made for one specific purpose: a patent war is looming, and these IT companies are preparing themselves. And this war isn't just going to be waged amongst themselves. There is also another combatant in the fields. IT "Trolls" are companies that hoard a vast number of patents, much like actual mythical cave trolls with treasure. They do so with no intention of converting these patents into products. Rather, they intend to resort to the law for claiming huge amounts of damages when any of these patents are infringed by another. In the USA, over $80 billion were claimed as such damages in 2010 alone.

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