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Dancing on Pinheads
Technical Effects - As Such

There are one or two trite fundamentals of computer law. Amongst the most entertaining is the conundrum that:

  1. A Computer Program is not patentable, and yet
  2. There are many thousands of software patents.

A case, In re IBM’s European Patent Application No 96 305 851.6 Case T 0935/97 EPC (Times 15 April 1999) has done much to add to the confusion.

The European Patents Convention excludes computer programs from being patented ‘as such.’ The case suggests that the structure of the sentence requires an interpretation of the words ‘as such’ which closely limits that exclusion. Provided you are not daft enough to ask for the registration of the software 'as such', and can demonstrate that the idea has some minimal 'technical effect' (perhaps causing a computer screen to display a character, or something else equally earth shattering), the patent should be granted.

In one bound, would be patenters of software are free. Free to register their ideas wherever and whenever they want. They need only demonstrate that the software program has ‘some technical effect’ (and the usual other requirements of patenting), to secure the right to register their program. A further technical effect need not be great. It need only, for example, cause a disc to operate, or a screen to flicker. In other words, provided only that the program is not entirely self contained, provided it does something, not nothing at all, it can be registered. Technically the requirement is some technical effect which goes beyond the normal physical interactions between the software and the hardware which runs it.

The logic seems to be that the Convention sees computer programs as mere logical entities with insufficient presence in the real world, to justify patentability. It follows, the argument says, that once the computer program breaks through into the physical world, it becomes patentable.

Let me make it clear. I do not believe that patenting has any welcome purpose in software development. The means by which an idea is created, developed, and implemented within software is quite different from the way in which such ideas come through. I also believe that the history of software patenting betrays only the most miserable of attempts to live within the proper requirements of demonstrating that an idea is new. There is no effective way of justifying assertions about 'prior art' and it seems to be forgotten.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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18 October 2013 http://www.swarb.co.uk/lawb/ipPinheads.shtml 9 18 October 2013