Websites, iPad apps, accounting systems, and the software running on your home wireless router are all the result of an often considerable investment of time, money, skill and effort. In return, their creators are typically rewarded with a bundle of intellectual property rights. One of the most important of these is copyright, which protects the software itself, and the graphics and text used in the interface. However, more powerful protection is potentially available through registration of a patent for innovative aspects of software. Rather than protecting design elements, or the source code behind software, a patent can be directed at protecting the more abstract mechanism used by the software to achieve its function.
The patenting of software is one of the most hotly debated issues in the field of intellectual property, and probably the most high profile case in the field is that of Amazon’s ‘1-click’ patent. The alleged innovation consisted of a way of allowing online shoppers to buy products with a single click. Instead of entering payment details each time, the Amazon servers identify visitors using a cookie stored on their computer and retrieve the information automatically. While Amazon secured patent protection for the technique in the United States back in 1999, its efforts to obtain protection internationally provide an interesting illustration of the differing approaches taken to patent protection of software inventions in different jurisdictions.
For example, while the Canadian, US and Australian patent regimes have so far been broadly in favour of crucial elements of Amazon’s patent claims, the European Patent Office appears to be taking a different stance. A more detailed analysis of the fate of the patent is available here.
There are also differences in the treatment of applications for patent protection of software within Europe, between the European Patent Office and the UK Intellectual Property Office, with the latter being viewed by some as less lenient when it comes to computer implemented inventions.
One comment in the Guardian’s editorial on the subject resounds with this author:
Until the mid-1990s the computer industry – including Microsoft – was opposed to such licensing. This was mainly because the industry was so innovative without the protection of patents, which in any case involved often quite trivial advances in technology that were regarded as a standard part of an engineer’s work.
Every non-trivial piece of software involves a series of technical problems overcome through the innovative application of a developer’s expertise and experience. Unquantifiable amounts of code are written, and an unfathomable number of problems overcome each day by software engineers worldwide, and the 1-click ‘innovation’ by Amazon is far from the most complex of these. Much like that of a developer, a lawyer’s work involves using language to communicate complex information, and the analysis of rules and their application under specific circumstances. If monopoly rights were granted over certain approaches to applying rules to sets of facts, to the structure of contract templates, or to more effective means of communicating information linguistically, I would be concerned that many legal professionals would grind to a halt.
While patents offer an important incentive to innovate, and a just reward to those who develop new technology benefitting society, I worry that if the bar to patent protection is set too low for software then smaller players in the field, who cannot afford to acquire patent portfolios or to pay for licensing agreements, may be forced out of the market altogether.