A Comparative Review of New Developments
- New Directions in Patent Law series
Edited by Emanuela Arezzo and Gustavo Ghidini
Chapter 6: Are Software Patents Something Special?
6. Are software patents something special? Reinier B. Bakels INTRODUCTION Software patents are problematic in two different ways: it is controversial whether these patents are useful, and the bounds of software patentability are unclear. What is a software patent precisely? There is much confusion about the nature of software patents. As we will see shortly, it is not a clearly defined category. Therefore, it is irresponsible to make specific and generic statements about software patents. Still, doubts about software patent efficiency are not unfounded. As we will see, ‘software’ is primarily a risk factor for a socially undesirable use of patents. In European jurisdictions, software is excluded from patentability in certain cases, even if it is novel and non-obvious, and even under American patent law, software is not always patentable. In Europe, patents are only granted for technology, Americans exclude abstract ideas. But what is ‘technology’? And what ‘abstract’? Even after recent decisions of the EPO Enlarged Board of Appeal,1 and the US Federal Supreme Court2 the limits of software patentability are still not very clear. This contribution focuses on some selected topics that are essential for a better understanding of the widely voiced concerns about software patents, and opportunities for improvement. 1 Enlarged Board of Appeal of the EPO (hereinafter: EBoA) 12 May 2010, case G 3/08 (Programs for computers). 2 See U.S. Supreme Court 28 June 2010, case 08-964, 130 S.Ct. 3218, 2010 WL 2555192 (U.S.) (Bilski v. Kappos). 131 AREZZO PRINT.indd 131 25/10/2011 16:47 132...
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