What are Software Patents

Intellectual property has grown exponentially because of commercial benefits in guarding intellectual property rights within India also outside India. The term "software" doesn't have a specific definition and even the software industries are unable to define it.

The computer program is typically divided into two parts "Application programs" and "Operating System Programs". Application programs are intended to do the precise job to be done through the computer and the operating system programs are intended to do the internal function of the computer to facilitate the use of application programs.

A software patent doesn't have any specific widely-accepted definition. Although, the Foundation for free information infrastructure tried to define it as a Software patent is" a patent on any performance of a computer realized through a computer program."

According to "Richard Stallman" who is co-developer of the operating system "GNU-Linux" tried to define the Software patent as "Patents which cover software ideas, ideas which you would utilize in developing software."

As per the analysis of the Software patent Institute, there are thousands of software patents issued every year. Though, arguments are going on about whether and under what circumstances software must be patented, this is always a dilemma for the person or organization which is involved in software development. It can be quite tricky to say, which one is the best mode to protect the software from the competitors from using, selling the same programs that execute a similar task.

Example of Software Patent:

• "A Computer Arranged for the Automatic Solution of Linear Programming Problems:

The first patent application was filed for an above patent in Britain on 21 September 1962. This invention was about efficient memory management for a simple algorithm and may be executed by merely software means. On 17 August 1966, this patent was finally granted.

Comparison between Software Patent and Software Copyright:

A Software Patent is different from Software Copyright. Both Intellectual Property laws protect the product but copyright only protects the expression of an idea means it may only protect the exact written code of a software program.

Software patents in different jurisdictions:

US position:

In the US, Software patents can be patentable if it's distinctive and embedded on a machine. The United States Patent and Trademark Office (USPTO) has directed guidelines for the examination of computer-related inventions. These guidelines assist to identify whether an invention is eligible for strong protection like a Patent. While these guidelines do not have legal support but, some software's are eligible for a patent.

As per US law, Software is a patentable thing which is sometimes referred to as Computer-implemented processes. Nevertheless, the software also meets specific criteria like other products.

• There should be a commercial means to utilize the invention; it means the software is used with the machine.

• The invention must be novel, unique, and non-obvious to anyone who is ordinarily skilled in that respective industry.

• The patent application must be filled with all the necessary details and all the information about the software product – called disclosure should satisfy the guidelines which the USPTO is laid down.

Software patents are now widespread in the US. Roughly 5 lack patents had been issued in the 23 classes of patents which casing "Computer-implemented inventions" until 2005.

European Position:

European Patent Convention (EPC) came into force in the late 1970s, after that many inventions including software issued by European Patent Office (EPO) and other national patent offices.

According to Article 52 of EPC, "programs for computers" disqualified from patentability to the extent that patent application is related to a computer program. "as such". The meaning of that if an invention includes the non-obvious "technical contribution "or solves technical issues in a non-obvious way is patentable even if computer code is utilized in that invention.

Japanese Position:

Software is directly got patented in Japan. Software patents are effectively issued in various litigations of Japan. For example, Matsushita won a case preventing Justsystem from violating Matsuhita's patent granted in Japan which was word processing software in 2005.

Indian Position:

According to Section 3(k) of the Indian Patent Act which was recently amended in 2002 which is called as Patent (Amendment) Act, 2002, "A mathematical method or a business method or computer program per se or algorithms" are considered as non-patentable subject matter. But, on the other hand, according to amendments in 2005, embedded software is open for patenting after ordinance 2004 has been passed with presidential assent.

Hence, the amendment means that a mathematical or business method or an algorithm cannot be patented but a computer program that technical application in any industry and capable of embedding on hardware can be patented.

Alike, the other inventions, software patents are also required fulfilling three basic criteria i.e. Inventive Steps, Novelty, and Industrial applicability.

Hence, it is pertinent to note that, software which applied to be protected should not be simply a new version or an enhancement of existing software code.

Conclusion:

Software patents are the most debatable matter for decades now. Below are some reasons because of which it's debatable all over the world. 1. The Definition of "abstract idea" is not always clear in patent law at various jurisdictions. 2. In the worldwide marketplace, there not much difference between patented software and non-patented software. 3. Technical & Legal software programs can obstruct inventions and patentability.

Many people opined that software patents are a peril to inventions. This is due to many new programs depends upon the older patented programs to work fine. So, software patents can interfere with the developer's work to put existing programs to use. For example Software developer who develops a Smartphone may be excluded from using and also perhaps enhancing a certain type of menu because a competitor holds the patent for that specific code.

In today's time, thousands of software patents are in force and each one has the right to exclude from others to use the particular software code for 20 years this puts a limit on further innovation in the software industry. Therefore, Software patents are sword and shield in various ways at a time for both inventors and competitors.

know more about the protection of software and websites through intellectual property, see the video below -

BY-

Sushama Dilip Mahasurle