More than half of the 170+ countries in the world that grant patents permit the patenting of software-related inventions, at least to some degree. There is a worldwide trend in favor of adopting patent protection for software-related inventions. This trend accelerated following the adoption in 1994 of the TRIPS Agreement, which mandates member countries to provide patent protection for inventions in all fields of technology, but which stops short of mandatory patent protection for software per se. The most widely followed doctrine governing the scope of patent protection for software-related inventions is the "technical effects" doctrine that was first promulgated by the European Patent Office (EPO). This doctrine generally holds that software is patentable if the application of the software has a "technical effect." Thus, for example, software that controls the timing of an electronic engine is patentable under this doctrine, whereas software that detects and corrects contextual homophone errors (e.g., "there" to "their") may not be patentable. The EPO law regarding patentability of software tends to be somewhat more liberal than the individual laws of some of the EPO member countries that conduct substantive examinations of applications on the merits. Thus, one desiring to patent a software-related invention in Europe may choose to file an EPO application designating the EPO countries in which protection is sought, rather than filing separate patent applications in individual EPO countries. An EPO application, after allowance, is then granted in force within the selected countries. For each country, the exact nature of software patentability is a complicated question. Even in countries that are liberal in granting patents on computer software, certain limitations apply. For example, in the United States and Japan, software that affects a physical process may be patentable. If the software pre-empts a mathematical algorithm, however, it is not patentable. Obtaining patent protection for any invention, including software, is relatively expensive. For each country in which patent protection is sought, the cost is typically several thousands of dollars in attorney fees, patent draftsman charges, and governmental fees. Why, then, would one seek patent protection for software rather than rely upon copyright protection? First, a patent is valid against everyone in that country who makes, uses or sells the patented invention, even if the infringer invented it independently. In the United States, a provisional patent application may be filed on a software-related invention to preserve priority of invention that may then be perfected as domestic and international patent rights. Second, while copyright law protects only the expression of an idea, patent law protects the underlying idea, provided the idea is within the statutory categories of patentable subject matter and is not so fundamental that it constitutes a law of nature. Thus, for example, under U.S. patent law a mathematical algorithm is not patentable if the patent claim pre-empts the entire algorithm, but may be patentable if it applies the algorithm to accomplish a specific technical purpose. Finally, because many software products are mass-marketed without a signed license agreement, the strong protection provided by patent laws is increasingly important.
CONCEPT AND TREATIES:
Although patent protection for software is available in an increasingly greater number of countries, the manner in which software is claimed in a patent is not necessarily consistent. Some countries permit the practice of claiming a computer program stored on computer readable media. When a computer program is claimed in this manner, the infringing article is the medium that contains the computer program. As a result, the patent holder can enforce the patent against publishers who place an infringing program on the media rather than being limited to enforcing the patent against...
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