09 March 2017
Geneva
Reporter: Mark Dugdale

Experts staunchly defend software patents


The quality of a software invention, rather than its mode of implementation, should be the litmus test for patent protection, according to two intellectual property consultants.

IP and innovation consultant Ania Jedrusik and former Qualcomm chief patent counsel Phil Wadsworth argued that patents are the strongest form of protection for the huge research and development expenditure associated with developing software-related inventions, in an article published in February’s edition of WIPO Magazine.

Challenging criticisms that software inventions are not costly to develop and that awarded patents are often low quality, they unpicked the alternatives, including copyright, which “only safeguards against the literal copying of the source or object code”, and trade secrets, whose very secrecy makes them inappropriate for standardised technologies that facilitate interoperability.

“While copyright and trade secrets are complementary forms of protection, they do not provide the same benefits as patents nor the same incentives to invest in the underlying innovation,” they wrote.

As to quality, Jedrusik and Wadsworth argued that “the decision to employ an invention using software or hardware is often a design choice that should be left to technical experts, not circumscribed by patent laws”.

They explained: “The quality of an invention, rather than its mode of implementation, should be the litmus test for patent protection … Relying on a distinction between software-related and non-software-related inventions to justify discriminatory treatment frustrates the purpose of patent law and could hamper technological progress.”

It should be left to examiners to decide whether an invention is worthy of patent protection, Jedrusik and Wadsworth argued.

“Patent examiners are empowered to consider whether the proposed invention represents a technical step forward. The focus should be on ensuring that examiners have the right tools to make that evaluation, not on excluding software-related inventions from patent protection.”

More Europe news
The latest news from IPPro Patents
Join Our Newsletter

Sign up today and never
miss the latest news or an issue again

Subscribe now
Universities should be more flexible
18 August 2017 | London | Reporter: Barney Dixon
Perceived barriers could potentially be torn down by the Aarhus University’s proposed ‘patent free’ research zone, but academia should not be wedded to a single solution, according to Sean Jauss, partner at Mewburn Ellis
Aarhus University champions ‘patent free’ research zone
10 August 2017 | Aarhus | Reporter: Barney Dixon
Aarhus University, along with leading Danish industrial companies including Lego, has created the Open Science platform in a move away from the patenting ‘rat race’
Apple paid $1.7 billion to Nokia
31 July 2017 | Espoo | Reporter: Barney Dixon
Apple paid $1.7 billion up-front to Nokia as part of a patent settlement in May
PatSnap partners with GreyB
20 July 2017 | London | Reporter: Barney Dixon
Intellectual property analytics company PatSnap has entered into a strategic alliance with technology consulting and research firm GreyB
Top German court backs compulsory licence
14 July 2017 | Karlsruhe | Reporter: Mark Dugdale
A German court was right to grant a compulsory licence to a patent for a HIV drug, the country’s Federal Court of Justice has ruled
UK Supreme Court tweaks equivalent infringement
13 July 2017 | London | Reporter: Mark Dugdale
The UK Supreme Court’s ruling in Actavis v Eli Lilly put more emphasis on considering the invention in the patent when assessing whether a competitor infringes, according to Hogan Lovells
The UK Supreme Court has upheld the validity of and adjudged as infringed Eli Lilly’s vitamin regimen patent for Alimta