Software Patent

Software Patenting

The Foundation for a Free Information Infrastructure defines software patenting as “patent on any performance of a computer realized by means of a computer program”. Richard Stallman, who co-developed the GNU-Linux operating system, says that ‘Software patents are patents which cover software ideas, ideas which you would use in Developing Software‘. The term ’software’ is somewhat difficult to define. Usually it is categorized as either ‘applications programs’ or ‘operating system programs’. Both application and OS software may be patented.

The issue of whether patents should be granted to software has generated much debate. If you wish to apply for a software patent, you should be aware of the arguments for and against software patents.

It is necessary to understand the difference between patent and copyright to understand why software patenting is questioned by many people. Traditionally, software has been protected under copyright law as the code of program can be treated as a literary work. Any code that is written is covered by copyright as a work of literature under the Berne convention.

People began to patent software because copyrighting was deemed ineffective against protection of ideas in the case of computer programs. Patenting allowed developers to prevent other parties from using software that they had patented even if those parties had developed similar software independently. Moreover, it prevented others from using methodologies used to create the patented software. If we take the example of a code that adds numbers, a person who creates another code to add numbers does not infringe the copyright of the first code. However, if the concept of adding numbers is patented, no one else can write a code to add numbers.

The above example shows how the progress of the Software Industry may be held up if anyone is issued a patent with regard to ideas. Usually the patent granting authority makes sure that a patent is not granted on an idea that is obvious to experts of the field.

If you have developed software that is patent worthy, it may be good idea to apply for the patent as soon as possible. This is important because in most countries, patents are granted to people who apply first, regardless of who invents first.

Before you initiate the software patent application process, study the records available at the U.S. Patent and Trademark Office to make sure that the invention is indeed novel. Often a patent attorney is appointed to go through the patents that have been issued. These patents are known as ‘prior art’. The attorney should also be able to suggest the correct breadth of a patent. If a patent makes very narrow claims, it will not provide adequate protection against competitors. If the claims are too broad, the application may be rejected.

If you think that you need software patent protection, you must remember that protection is territorial and software patent laws differ from country to country. It is always advisable to consult a patent attorney before one proceeds with software patenting.

About the Author

The author is a Legal Consultant having a deep knowledge about legal services & working with a reputed Legal Process Outsourcing Firm.

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