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Why are software patents so controversial?

Michael McLaughlin | May 20, 2009
There are a number of reasons.

The big picture

Now, before you say of course hes going to say that, hes a patent lawyer, isnt he? we need to look at the big picture. We need to understand the exclusions and whether it is still relevant.

When the European Patent Convention was introduced back in the 1970s, the exclusion for programs for computers as such was written in to European patent law. Looking at the history of it, one reason given for this was that it was felt the computer industry didnt need or want patents (despite the fact patents for computer-related inventions have been issued since at least the early 1960s). I havent so far found out whether that feeling was representative of the industry en masse. Another reason that has been put to me is that computer program listings are covered by copyright protection and it is generally undesirable to have two types of intellectual property rights covering the same thing. That one I understand.

However, I think this is very much a case of that was then and this is now. Despite those who disapprove of software patents, there is an overwhelming demand in the ICT industries for patents for computer-related inventions. As we discussed previously, a patent can be a very strong tool and companies see them as an essential business tool in a marketplace of ever-increasing competitiveness. If there was no demand for this sort of thing, I simply wouldnt be writing this blog.

I do a great deal of work in the area in response to demand from the industry. Without that demand, I never would have developed any expertise in it and would simply be in no position to write about it. See also the EPOs site which states that … patent applications for computer-based inventions have the highest growth rate among all patent categories presented to the European Patent Office (EPO) over the past few years.

Anyway, thats just a quick introduction to the topic. Well follow up shortly with a look at some bodies in the open-source movement, the arguments for and against software patents, whether software patents are any different from patents in other technology fields and the practice for software patents in some countries of note.

Michael McLaughlin is a patent attorney with at McLaughlin IP  in Singapore. His practice extends across all areas of engineering and physical sciences, but has a particular focus on ICT.


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