Software Patents

Providing software protection has its own benefits and shortcomings since every decision on software design is bound to elicit risks of infringing in a patent and thus, affect the software project.  Development of complex and big programs involve combination of many ideas and in countries where software protection is allowed, there is a high possibility that significant part of ideas in a new program will have been patented by some firms.  Where the software is quite novel and not obvious, it is important to provide patent protection to avert any effort by others to use, sell or import this patented invention. The patent will be important in preventing others from using an inventive aspect of the novel software or adopting the distinguishing features in case of a new website (Bird & Jain, 2008). In fact, software offers more protection to the developers of the software that would the copyright law. A concern will arise where the protection impedes innovation and development of new softwares or destroy the software project altogether.  This includes cases where the software patent becomes harmful so that it  unjustly or unreasonably restrict a person from using their computer  and more so those patents that  come from mistakes. These mistakes results from a situation where rules of patent systems were not done properly. This means that software patent should be allowed if they are legally valid in accordance with the criteria of the patent system(Bird & Jain, 2008).

 Software patents should have its limitation so as to reduce the short-comings that comes with it. This includes limiting the protection if the idea behind the invention dose not adds anything significant to the basic abstract idea. This is because the idea may have been longstanding and just programmed to be used by the computer. This means that for a software to continue being patent-eligible, it has to make a significant improvement on the operations of a computer (Stallman, 2014). Such limitations will ensure that software protection does not act as an impediment to innovation and using the computer system.  If the Amazon.com software had been patented without being non-obvious and novel, it means that the company would have unjustly controlled e-commerce alone and thereby hindering inventions and innovation in this sector and other areas related to online trading and marketing.

Previously, the issue of software patent has been thorny to practitioners especially in relation to eligibility of the subject matter which has varied greatly between Europe and U.S. The assumption has been that many inventions related to software will be patented in U.S if this fails in Europe. In United States, the courts have place limitations on software patents but have not eliminate the protection altogether. Since the Alice Corp v.CLS Bank ruling by the US Supreme Court, where justices clarified that addition of some fancy-sounding computer software language to some normal aspects of technology and business does not guarantee patent safety, judges in district courts have made invalid many patents (Knights  & Redinger, n.d). The invalidation has been done on the basis that such were just fancy ideas that did not merit patent. In Europte, courts in different countries have followed different approaches do validate or invalidate software patents with some offering the protection. Achieving a balance which enhances progress in useful science and arts can be done by establishing merits on how patent protection should be upheld without hindering innovation.

References

Bird, R., & Jain, S. C. (2008). The global challenge of intellectual property rights. Cheltenham, UK: Edward Elgar.29-31

Stallman ,R., (2014).Fighting Software Patents - Singly and Together. Retrieved from: https://www.gnu.org/philosophy/fighting-software-patents.en.html

 

Knights, R. A., & Redinger, C. A, (n.d). Patent Eligibility of Software Patents in the US and Europe: A Post-Alice Consideration.