Software Patent

Softwarepatent is an expression that does not exist in patent law. It is used by individuals or organizations who would like to make the public believe, that patents for technical apparatusses or methods carried out by control of software achieving a technical solution to a (technical) problem, are granted in violation of (European) patent law. This misconception is based on the exculusion of programs for computers as such in Article 52 (3) of the European Patent Convention.

Some of the opponents even deny the words "as such" any meaning and argue these word just have to be ignored. But any rational thinking layman knows that each word in a law is there for a reason and connot be ignored.

In various decisions it was clarified that "as such" signifies the pure logical concept, the algorithm of a computer program. As soon as input data representing technical entities is modified by a computer program generating output data representing technical entities, the computer program is just a technical means, like any hardware. The same software still might be subject of another patent in another technical field. For example, if an algorithm is protectecd by a patent as part of an anti-slide system for a car, it still would be possible to get a patent for using this algorithm in a washing mschine to improve the efficiency of the cleaning process (if all other criterias as novelty and inventive step are still met). To express the use of software as an equivalent to hardware the expression "computer implemented inventions" has become the preferred expression by patent experts.

In my personal view the reason why "software patents" has become a hot discussed topic is that computers have become an available tool for everyone. Everyone with a computer can start within minutes to produce technical solutions, like MP3 players and as easily might infringe patents, completely being unaware of his infringement. Allthough also in the "hard ware world" unintentionally infringements occured, all people doing business had to accept their liability if they did not perform a patent search before starting hard ware development.