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.”