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10 March 2009, 16:16

More disputes over software patents in Europe and in the US

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Over the next few months, significant decisions will be made, both in the US and in Europe, concerning the patentability of software and of business practices, decisions which are already casting shadows. Concluding at the end of April, the Enlarged Board of Appeal at the European Patent Office (EPA) is conducting a consultation about the patentability of computer programs. The board hopes that the consultation will help with the processing of the referral by EPA President Alison Brimelow to clarify open questions concerning the controversial interpretations of the European Patent Convention (EPC). The questions refer to Article 52, which states that "programs for computers as such" are not to be regarded as inventions and are therefore excluded from patentability.

The Board of Appeal has already received a statementPDF by Philips. In this statement, the Dutch electronics giant says that it considers the provided software patent protection insufficient, and that it thinks that computer-implemented inventions should be patentable. According to Philips, they belong in the field of technology. Philips statement says that, in keeping with the World Trade Organisation's agreement on "trade-related aspects of intellectual property rights (TRIPS), they should, therefore, not be denied patentability as long as they are new and innovative.

In the US, the supporters of programmer Bernard Bilski have made a statement during the first round at the US Supreme Court. Bilski and his partner Rand Warsaw have asked the Supreme Court to clarify whether the “machine-or-transformation test” for the patentability of business practices and software applied by the relevant Court of Appeal is consistent with the US Constitution. The Federal Circuit's Court of Appeal ruled that a method for predicting, for example, the fluctuations in customer demand for generally available commodities, such as fluctuations in energy demand caused by bad weather, is not eligible for patenting. The appeal judges argued that in order to be patentable, programs need to either relate to a specific machine or device, or transform an object into a different state or object.

Since the legal issues in Bilski case impinge directly on software patentability, Philips has also argued extensive in favour of patentability in this case. Similar pleasPDF have been submitted by organisations like the American Intellectual Property Law Association (AIPLA) and by Borland. The Texas software vendor points out the increasing complexity of computer programs, which are developed at great expense and sometimes over the course of several years. Borland argues that the applied test procedure ignores the technological progress made, for example in the fields of cloud computing, search engines, podcasting, computer games and network routing, which often remains "intangible" in the physical objects.

(Stefan Krempl)


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