Software and Patents in Europe (Cambridge Intellectual Property and Information Law, Series Number 9)

The computer program exclusion from Article 52 of the European Patent Convention (EPC) proved impossible to uphold as industry moved over to digital technology, and the Boards of Appeal of the European Patent Organisation (EPO) felt emboldened to circumvent the EPC in Vicom by creating the legal fiction of 'technical effect'. This 'engineer's solution' emphasised that protection should be available for a device, a situation which has led to software and business methods being protected throughout Europe when the form of application, rather than the substance, is acceptable. Since the Article 52 exclusion has effectively vanished, it is timely to reconsider what makes examination of software invention difficult and what leads to such energetic opposition to protecting inventive activity in the software field. Leith advocates a more programming-centric approach, which recognises that software examination requires different strategies from that of other technical fields. Cover 1 Half-title 3 Series-title 4 Title 5 Copyright 6 Dedication 7 Contents 9 List of figures 10 Introduction 11 1 Software as machine 16 The problem: invention and the definition of technology 16 How did we get here? 21 The EPC exemptions 32 Patentable inventions 33 The Boards of Appeal 36 The missing element: the programmer’s view 44 2 Software as software 49 Introduction 49 What underlies programming? 52 The problem 53 Possible solutions 54 Where is the algorithm? 59 Communicating the virtual worlds – the ideogram 60 Textual descriptions 69 The skilled man 71 Where lies the invention? Levels of abstraction 75 Conclusion 77 3 Policy arguments 79 Introduction 79 Other protections 83 The argument for patent protection 89 The policy argument against patent protection 95 Hinder or invigorate? 96 Software and examination 100 Suitability for SMEs 101 Monopoly issues 104 Do ‘workarounds’ weaken software patent strength? 107 Conclusion: the patent system as lottery? 108 4 Software patent examination 112 Introduction 112 Breadth: HyperCard versus Zoomracks 116 HyperCard 117 The ‘rack and card’ patent 119 The dispute 121 Prior art and persuasion: legal document drafting 124 Method and system for creating documents 125 Was it novel and inventive? 127 What – if anything – went wrong? 129 Macrossan and more document assembly: levels of technical contribution 131 Evidential matters: do the patented ideas actually work? 135 Classification system developments 138 Problems and solutions 140 Public input to examination 141 Conclusion: does a European examination matter? 142 5 Holding the line: algorithms, business methods and other computing ogres 145 Introduction 145 What is currently protectable as ‘software’? 148 Algorithms and mathematics: are the models broken? 151 Business methods 157 Information 162 Conclusion 164 6 The third way: between patent and copyright? 166 Introduction 166 The ‘Manifesto’ 170 Does the Manifesto offer improvement to the system? 175 Is software really different? 176 What is so special about being cumulative and incremental? 177 Isn’t everything protected by patent a behavioural form? 177 Is cloning really problematic? Add-ons? 178 Clarity of predictability of anti-cloning? 179 Registration – isn’t this just the patent system again? 179 A Software Petite Patent Act 179 Criticisms of Paley’s model 182 The proposed European Utility Model 183 Are software utility models problematical? 188 Conclusion: are these alternatives workable? 190 7 Conclusion: dealing with and harmonising ‘radical’ technologies 192 Introduction 192 Inventive step 195 Where do we go now? 198 Conclusion: are patents of benefit to a radical technology? 203 Index 206 "The computer program exclusion from Article 52 of the European Patent Convention (EPC) proved impossible to uphold as industry moved over to digital technology, and the Boards of Appeal of the European Patent Organisation (EPO) felt emboldened to circumvent the EPC in Vicom by creating the legal fiction of 'technical effect'. This 'engineer's solution' emphasised that protection should be available for a device, a situation which has led to software and business methods being protected throughout Europe when the form of application, rather than the substance, is acceptable. Since the Article 52 exclusion has effectively vanished, it is timely to reconsider what makes examination of software invention difficult and what leads to such energetic opposition to protecting inventive activity in the software field, Leith advocates a more programming-centre approach, which recognises that software examination requires different strategies from that of other technical fields."--Jacket The computer program exclusion from Article 52 of the European Patent Convention (EPC) proved impossible to uphold as industry moved over to digital technology, and the Boards of Appeal of the European Patent Organisation (EPO) felt emboldened to circumvent the EPC in Vicom by creating the legal fiction of 'technical effect'. This 'engineer's solution' emphasised that protection should be available for a device, a situation which has led to software and business methods being protected throughout Europe when the form of application, rather than the substance, is acceptable. Since the Article 52 exclusion has effectively vanished, this text examines what makes examination of software invention difficult and what leads to such energetic opposition to protecting inventive activity in the software field. Leith advocates a more programming-centric approach, which recognises that software examination requires different strategies from that of other technical fields. The computer program exclusion from Article 52 of the European Patent Convention proved impossible to uphold as industry moved over to digital technology. This text reconsiders what makes examination of software invention difficult and what leads to such energetic opposition to protecting inventive activity in the software field This 2007 text advocates revisions to the existing system for patenting software in Europe