The issue of software patents has recently been highlighted by a proposal to change German patent and copyright law. The proposal recommends preventing computer software being registered as a patent, arguing that computer software should only be protected using copyright law, as this is sufficient to protect a software developer’s rights. In light of the current German proposal, below is a brief summary of patent and copyright law in relation to software in the UK, Germany and non-EU countries.
A patent protects a new invention and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission. Generally software cannot be patented in the UK but there are limited exceptions which are set out below in more detail.
Software Patents in the UK
Despite the general presumption that software cannot be patented in the UK, it is possible to patent some computer software inventions in the UK. This is because software uses technology (computers) but often for non-technical purposes. Whether a computer software invention is patentable depends on the contribution the invention makes. For example, if computer software provided improved control of a car braking system, it would be likely to be patentable in the UK, but if it merely provided an improved accounting system, it would probably not be patentable in the UK.
Patents outside the UK
The law on what is patentable within the EU is generally the same as in the UK, as national patent laws are derived from the European Patent Convention (EPC). However, individual EU countries may interpret the terms of the EPC differently resulting in different rules actually applying in each EU country. For example, in Germany only software that substitutes a mechanical or electro-magnetic component is patentable. Outside of the EU, in the US and Japan, software patents can be registered with very few restrictions.
Copyright v Patent Law
Copyright alone does not adequately protect computer software as it does not protect the functionality of software. This is because copyright only protects the expression of ideas in the software NOT the ideas themselves. If a third party substantially modified your software to create its own software that performed exactly the same function, it would not breach your copyright as there is no ‘copying’ of your software. For example: if you developed software that enabled you to create a mailing list function similar to the mailing list function in MS outlook this would not breach the copyright of MS, provided that you did not copy the MS source code in order to create this function.
The main objection to the use of patents to protect software, particularly in the open source software community and companies which use and contribute to open source, is that patents impede and/or prohibit the distribution of free software, as licence fees become payable for use of the patents. This results in technological progress being hindered and allows monopolies and powerful companies to exclude others from developing computer software e.g. Amazon “one-click” which is patented in the US but not in the EU.
The main argument in favour of patents is that companies have invested a great deal of time and money in research and development of the patented software and they must be able to recoup their investment costs by having exclusive rights in the patented software. As patent protection in the UK lasts for up to 20 years, unlike copyright protection which lasts for 70 years after the author’s death it is often claimed that software development is not substantially hindered, as once the patent expires the technology can be copied and used by anyone free of charge.
As an IT lawyer, I believe that by allowing patents to be granted for software (as is the case in the USA) the possibilities for rival software companies to make long and expensive claims of patent infringement increases substantially.
image courtesy of Sam Howzit