Trivial Software Patents

Abstract: Computer programs are excluded subject matter ''as such'' under the EPC. However, once ''technical character'' can be established in a software invention, and it fulfills all the requirements for patentability - being an invention, which is novel, has inventive step and is industrially applicable - software is very much patentable. The technical character requirement was originally connected to the invention criteria, but has been appropriately moved towards being part of the assessment for inventive step. Inventive step is concerned with the level of novelty required for a good quality patent. A patent lacking inventive step, but which is nonetheless granted, is called a ''trivial'' patent - which means ''novel but lacking inventive step''. Patents should provide incentives for innovation and facilitate for diffusion of technology that offset the negative effects the exclusive rights of patents have on competition. Therefore it is essential that granted software patents uphold a certain level of quality. Trivial patents are detrimental to innovation as they skew innovation incentives by, e.g. facilitating for an excessive amount of patent applications for low quality inventions and thus crowding the patent offices with work. Something that, in turn, requires a high level of skill of the patent examiners to ''sort'' the good from the bad. These problems are heightened by the current inability at the patent offices to keep up to date with the fast moving pace of the development in the software industry and a somewhat inconsistent application of patent law to software. The solution of the trivial patent problem, in my opinion, must be to look at the possibility of making amendments to the current assessment procedure of inventive step in software inventions rather than putting up a ban against them. Raising the standard of inventiveness required, but also granting the patent offices some more time to adjust to this fairly new field of technology would help. Furthermore, harmonization of software patent law on the EU level, possibly along the lines of what was proposed in the CII Directive, would make for more conform and predictable assessment of inventive step in software inventions, thus providing for legal certainty. In conclusion, there is no need for a prohibition on software patents, which are already allowable, or for strong opposition towards harmonization. The best step forward is to facilitate for an improved examination procedure, which will be better achieved through harmonization, rather than without it.