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Why are software patents so controversial?

Michael McLaughlin | May 20, 2009
There are a number of reasons.

Software patents are a controversial topic for a number of reasons. The controversy surrounds whether and to what extent patents should be granted for software inventions. At the moment, many countries allow patents for software inventions, but there has been a great deal of uncertainty as to what is and what is not patentable. There is in some areas strong opposition to the very idea of software patents and, maybe surprisingly, emotions do run high. Its an ongoing controversy and the European Patent Office (EPO), one of the biggest and most influential of all, is reviewing the matter again.

The principal reason for the controversy is that the laws of many countries define programs for computers as such as things which cannot be patented (although there is no such exclusion in Singapore). The provisions of the law which make these definitions are referred to as statutory exclusions. The controversy comes from the as such part of the exclusions in that its not well defined as to what it actually means. For instance, when is a software invention a computer program as such, and when is it not? Because when its not, its possible to obtain a patent for the invention.

Ongoing issue

Its an issue which comes up time and time again in the patent courts of the world. Many of these court hearings have sought to interpret the as such (or equivalent) exclusions and, from this, those countries have developed a legal framework within which computer-related inventions can be patented, subject to satisfying various criteria, even with the existence of these exclusions. Well take a look at this in later posts.

The Anti-Software Patent Lobby waves, vigorously, the anti-software patent flag (the clue is in their name) on the basis of the existence of these statutory exclusions. Of course, it is completely within their rights to do so. For instance, the Wikipedia entry on software patents informs us that There is tremendous animosity in the free software community towards software patents. (Frankly, Ive never fully understood why that is, although Im always willing to try. So if anyone does feel strongly about this, please post a reply.)

Also, check here (a page entitled Patents Roundup: Oracle, Backlash Against Software Patents…; see about one-third of the way down the page) where someone picked up pretty quickly that I had started writing this blog. Unfortunately, I dont think the writer of this piece has a full grasp of all the facts. The writer opines that … lawyers avoid complying with rules and manage to patent software anyway … where, as noted above, there is a distinct legal framework for software patents. So, were not seeking to bend or break the rules, were working within the rules of the existing legal frameworks. Of course, I cant say that no-one ever tried to bend the rules, but it seems to me to be a pretty unfair and inaccurate generalisation.

 

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