The Software Invention Cube:

The patent system aims at protecting inventions. The requirement that a software invention should make ‘a technical contribution’ turns out to be untenable in practice and this raises the question what constitutes an invention in the realm of software. We develop the Software Invention Cube (SWIC), a classification of software inventions and use this classification to explore the meaning of the notions ‘novelty’, ‘inventive step’ and ‘someone skilled in the art’ for software inventions. We come to the conclusion that no meaningful distinction can be made between a software invention and a software discovery, a distinction that is crucial in patent law. We also show that only in very few cases copyright is an alternative for patents to protect software inventions. In our analysis we make a distinction between software inventionism (the point of view that software inventions per se can exist and precede any patenting or any other form of protection) and the techno-political decisions that can be combined with it. The result is a framework that enables reasoning about the software inventions and their potential protection. Note that we completely decouple the question of what constitutes a software invention and the desirability to protect such an invention in any way.