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Software patents – the "technical effect"

Chris Lale

Abstract
This article explores the significance of the "technical effect" or "technical contribution" described in the European Commission's proposed directive on the patentability of computer-implemented inventions [1] by means of an analogy with music and a real-life example from the USA. Another article describes a musical analogy exploring the broader aspects of software patenting [2].

Revision history
Revision 1.0, 30th May 2003, Initial release, Chris Lale.
Revision 1.1, 12th December 2007, updated links, Chris Lale.

You can find the latest version of this document at http://www.untrammelled.co.uk .

Licence
Copyright © 2003 Chris Lale (chrislale AT untrammelled DOT co DOT uk). Permission is granted to copy, distribute and/or modify this document with no Invariant Sections, with no Front-Cover texts and with no Back-Cover Texts under the terms of the GNU Free Documentation License, version 1.1 or any later version, published by the Free Software Foundation. A copy of the license can be found at http://www.fsf.org/copyleft/fdl.html

The technical effect / technical contribution
The proposed directive would change the current legal position that protects software from being patented. It states that a piece of software may be patented if it makes "a technical contribution to the state of the art". The proposed directive has not been altogether successful in explaining when a so-called "technical" contribution exits and when it does not. Even allowing the principle of a technical contribution could be clearly established, the patenting of any software would have serious consequences for software developers and consumers. Here are a couple of examples:

Example 1: a musical analogy illustrating the technical effect.

In this analogy, music is the equivalent of computer software; film and playback equipment are the equivalent of computer hardware. Some of the technical effects in films and videos are created by music. Music for the film "Jaws" uses a particular "musical effect" (analogous to the technical effect in software).The musical effect is a repeated two-note figure in the bass similar to the two-tone horn of a UK fire engine. This effect is used to create a mood of "suspense" due to the proximity of a dangerous shark. The film producers can already protect the music using copyright. If they were also allowed to patent the musical effect, the results might include:

  • Other pieces of music using the effect would be subject to court action, even if the motif were a complete re-invention.
  • Alternative "suspense" motifs, although different, might be considered a development of the "Jaws" motif and also be subject to court action.
  • Large entertainment enterprises would make extra profit for no creative effort (through licensing).
  • Small entertainment enterprises would not be able to compete due to license costs and/or legal penalties.
  • Music development would be inhibited or prohibited.
  • Consumers would experience lower quality films (fewer technical effects) or more expensive films (due to patent licensing) or both.

It is debatable whether any of these results are desirable. Replace "music" and "entertainment" with "software" and you get an idea of the effect of the proposed EU Commission directive.

Example 2: the computer-implemented invention of the spreadsheet.

Dan Bricklin and Bob Frankston invented the first spreadsheet software in the US between 1977 and 1979. Patents for such computer-implemented inventions were infrequently granted at the time, but Dan Bricklin suggests that trademark and copyright protection were, and are, quite sufficient [3]. This is roughly the current situation in Europe. He also argues that allowing software patenting in the USA has penalised current and previous software developers.

Don Bricklin writes: "Experienced developers remember many of the techniques and inventions used over the last 50 years. They would never think to patent such things. Newcomers, without that experience, often think that they are superior to their predecessors, and think their discoveries are new, when they often are not. Since programming consists of constantly "inventing" ways to solve problems, anybody could think they have something new. The current climate in the USA encourages them to file for patents. The lack of history of the art, coupled with the difficulty of categorizing algorithms that have multiple uses, often makes it impossible to check for real originality. This puts experienced practitioners at a disadvantage, since they must not patent what they feel is obvious or not novel." [4]

He also says: "Some of the richest people in ... the United States made their money from software without the protection of patents."

This account suggests that the patentability of computer-implemented inventions in Europe would be unnecessary, and that it would also have serious negative effects.

Conclusion

In answering Parliamentary written question E-3927/02, the Eruopean Commission has stated that "computer software as such is excluded from patentabilty" [5]. This does not seem very reassuring. How can anyone know catagorically that a piece of software does not have a technical effect?
References

1. European Commission's proposed directive on the patentability of computer-implemented inventions, COM (2002) 091: http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Seek-Deliver&COLLECT...

2.Lale, Chris. "Software patents- a musical analogy": http://www.untrammelled.co.uk

3. Bricklin, Dan. "Patenting VisiCalc": http://www.bricklin.com/patenting.htm.

4. Bricklin, Dan. "Patents and software": http://www.bricklin.com/patentsandsoftware.htm.

5. European Parliament written answer E-3927/02: http://www2.europarl.eu.int/omk/OM-Europarl?PROG=WQ&L=EN&PUBREF=-EPTEXT+....