Software patent

The software patents are titles that recognize the right to exploit exclusively for 20 years functionalities, algorithms, representations and other actions that can be carried out with a computer and that are granted by some patent offices. patents in the world. In the jargon, this term is usually replaced by the expression "computer-implemented invention" which includes both controversial software patents and generally accepted 'computer inventions', that is, traditional physical inventions that include software in their operation. Thus, the European Patent Office (EPO) generally defines a computer-implemented invention as "expression intended to cover applications involving computers, computer networks or other conventional programmable devices for the novel characteristics of the appropriate invention to be manifested through of one or more programs."

There is a heated debate about the scope that should be granted to such patents, and even whether they should be instituted at all.

Controversy

Detractors of software patents argue that any computer program is made up of millions of components (procedures, algorithms,...) many of which could be patentable or even already patented. This would make a software project unfeasible by any SME or team of programmers that did not have other patents to exchange with their competitors (common practice among large developer corporations: the large exchanges of patent exchanges).

On the other hand, it is usually difficult to determine if a given code violates a patent, because to reach such certainty it would be necessary to evaluate all the existing software patents in the different patent offices (hundreds of thousands) and even then it could exist the doubt. Generally, a judicial process is necessary to determine with certainty whether a patent is being infringed by a certain program or not.

Obviously, both exhaustive searches and patent lawsuits are activities that are forbidden to small and medium-sized companies due to the great human and economic effort they represent, which would leave them out of the market because they are not competitive. Added to all of the above is the fact that in many cases one or a few software patents are enough to monopolize some computer functionality (the case of the shopping cart of the famous European and North American patent "One Click" from Amazon)..

On the other hand, the people involved in the free software movement warn that the use of patents would prevent the development of many projects that cannot pay for a license at the cost of ceasing to be free (free use and distribution of the program, access to the source code, possibility of modification).

From a social point of view, it is argued that software patents (and patents on medicines, business methods, legal procedures and genetic engineering, the latter the so-called "patents of life") privatize knowledge accentuating social and geographical inequalities by excluding the majority of the population as producers and even as consumers of the objects of said patents.

Proponents of software patents and related business models argue that, like any other patent, they help drive innovation, as in other industrial fields, by allowing the patent owner to profit from their monopoly and thus make the investment in development profitable.

Legislation

In the United States or Canada, the current legislation has already contemplated software patents for a long time. In India, patent officials have used the excuse that TRIPS obliges them (an argument never upheld) to declare software patents legal with an administrative decree subject to approval by Parliament by the first half of 2005.

In the territory of the European Union, the European Patent Office (EPO) and some other national patent offices have been granting many software patents since the 1980s and especially since the days of the &# 34;dot-com". However, in Europe, since Article 52 of the European Patent Convention, “computer programs” are expressly excluded, but only when they are claimed “as such”. The controversy in Europe is, therefore, in the interpretation of that "as such". The EPO interpretation leaves that "computer programs as such" reduced to nihilism, since it defines it as the source code and the object code of computer programs, something that nobody considers patenting because it is already protected by copyright. On the contrary, those opposed to software patents and business methods interpret the expression "computer programs as such" it includes all programming techniques and ideas and only excludes "computer-aided inventions". It is interesting that the examination guide of the European Patent Office of 1978 makes an interpretation equivalent to that of the opponents of software patents and that it has been gradually throughout the 80s and, above all, the 90s when the interpretation of the EPO has shifted to accept the patentability of the software.

The EU, through the European Commission, reopened the debate in 2002. The European Parliament, in a first reading of the draft Software Patent Directive in September 2003, excluded software patents. Later, both the Commission and the Council persisted, resubmitting the proposition legalizing software patents and even mathematical algorithms, when the Council and the German government used a last-minute ruse in 2004. Since then, several National Parliaments (such as the German, Spanish, Dutch and Danish) made various requests to try to renegotiate a less drastic solution, which, together with the rejection of Polish representation in the Council, delayed the adoption of the Council resolution as item A on the agenda (without discussion). Additionally, on February 28, 2005, the Commission rejected without any argument the practically unanimous request of the European Parliament to restart the entire process. Subsequently, the Council, under the Luxembourg presidency, refused to hold a second vote as item B on the agenda (with discussion) and determined that the resolution had been accepted, despite binding injunctions against the Dutch parliaments. and Danish.

Finally, the European Parliament was forced to start the second reading under one of the greatest social, media and political pressures it has ever been subjected to. Proof of this was the organization in Spain on April 27, 2005 of a concentration in all the universities to request that in this second reading Parliament once again reject software patents or the collection of more than 400,000 signatures on the Internet by from eurolinux. Finally, the European Parliament, in a vote carried out on July 6, 2005 -and, for the first time in history, for a second reading-, practically unanimously rejected the proposal for a software patentability directive, with 648 votes. votes against, 14 in favor and 18 abstentions.

New Spanish Patent Law

On November 14, 2014, the Council of Ministers approved the draft Patent Law that proposed reforming Spanish Patent Law 11/1986. In the drafting of the text that reached the Congress of Deputies to begin its parliamentary process, the modification of one of its articles left the door open to the possibility of patenting the software included in inventions.

Section 4 of article 4 of the bill includes the assumptions that are not considered inventions: discoveries, scientific theories and mathematical methods; literary, artistic or any other aesthetic creation, as well as scientific works; the plans, rules and methods for the exercise of intellectual activities, for games or for economic-commercial activities, as well as the computer programs and the ways of presenting information.

While the new section 5 of article 4 states: "The provisions of the previous section exclude the patentability of the materials or activities mentioned therein only to the extent that the patent application or patent is refers exclusively to one of them considered as such".

The expression "as such" added in section 5, which is not included in the 1986 law, implies that all exceptions that cannot be patented could be patentable if they are associated with something else.