The Role of Intellectual Property Rights in Patenting Computer Software

Topics: Patent, Patentable subject matter, Software patent Pages: 34 (12290 words) Published: June 2, 2011
Computer technology plays an increasingly important role in our society today. It penetrates more and more areas of our life, not only in business environments but also in daily surroundings. A computer cannot operate without instructions. These instructions, so-called computer programs or software, may be incorporated in the computer or apparatus, but are often created, reproduced and distributed on media such as CD-ROMs or transmitted on-line. Once created, it is often possible to reproduce software easily at very low cost. Thus, without appropriate protection against unauthorized copying and use, producers of software may not be able to recoup their investments. The unique nature of software is that it performs various functions through expressions written in computer language. Although copyright protects "literal expressions" of software, it does not protect the "concept" behind the software, which often is a core part of its commercial value. Since such concepts behind the software often provide technical functions such as controlling machines or processing data, program developers started seeking protection of software through the patent system. However, due to the special characteristics of software innovation, some people consider that patent protection of software would inhibit competition in this field. It is said that software innovation typically involves cumulative, sequential development and re-use of others' work, and that the need to preserve interoperability between programs, systems and network components does not fit with the mechanisms of the patent system because the range of options available to the second comer may be constrained. In recent years, another issue arose, namely the question of the patentability of business methods. Traditionally, business methods have been either in the public domain or protected under trade secret law. Today, however, information technology offers possibilities of applying new business models, using information technology as a tool for processing and transmitting various data and for communication. The Internet has provided new prospects of doing business on-line. Due to high economic stakes put on those new business methods and the expansion of e-commerce in our society, the debate on the opportunity of patenting business methods has continued at both the national and international levels. Software patents under TRIPs Agreement

Article 27 paragraph 1 of TRIPs states that:
"(...) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (...) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced." The only acceptable exceptions to this provision are laid down in the paragraphs 2 and 3 of the same Article 27. The following elements may be excluded from patentability by WTO members under TRIPs: • (...) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law. (paragraph 2) • diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (paragraph 3(a)) and • plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. (...) (paragraph 3(b)). However as Paul Hartnack, then Comptroller-General of the UK Patent Office, commented in 1998:[1] Some have argued that the TRIPS agreement requires us to grant patents for software because it...
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