How to treat software in the intellectual property framework

Abstract: The software industry is today one of the most important industries, and almost all devices we use contain some piece of software. As software has both a literal expression and an inventive aspect, it has been unclear which way the intellectual property should be protected. Software can be covered both by patents, that protect the idea behind the code, and copyright, that protects the expression of this idea. A copyrighted program can be examined and the ideas can be reimplemented in a competitors own “words”, thereby circumventing the copyright restriction. Therefore, many have argued for the use of patents. Patents grant an exclusive right to the inventor to use the invention for 20 years, if certain conditions are met (utility, novelty, inventive step). This gives the inventor a head start in commercializing his invention and hopefully allows him to recoup the investment costs. The patent also acts as a knowledge dissemination tool. After the patent has been granted, the claim describing precisely how to implement the invention is made public. However, patents carry the risk of impeding innovation in the industry by granting a too large monopoly to one entity, preventing competition and continued development in that area. In the United States, patent protection of software has gone through several periods. In the 70s and 80s, three cases established a very narrow patent eligibility of software. It was only patentable together with a specific machine or a process that transformed matter into another form. In the 90s, case law opened for the patenting of basically all software, as long as it was useful. This led to the granting of hundreds of thousands of software patents. Recently, courts have gone back to not treating software as an invention, only allowing patenting if the implementation is inventive. The view how to treat software in legal doctrine is very varied. Some argue that software is fundamentally different from hardware and should therefore not be patent eligible. They also argue that software patents have harmed the software industry. Others argue that software should be patent eligible in order to increase research and innovation. Yet others argue that a new kind of protection should be introduced for software. I find that software is not fundamentally different from other inventions, and that it should therefore be patent eligible, as long as it meets the requirements for patentability. Many of the court cases should have been decided by applying these criteria instead of excluding software as such. The problems in practice also seem to stem from a misapplication of the inventive step and novelty tests. However, the patent term should be decreased for software patents. The current term reflects an innovation pace unsuitable for the software industry. This would solve many of the practical problems of software patenting.