The Software Invention Cube: a Classification Scheme for Software Inventions

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 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. Note that we completely decouple the question of what constitutes a software invention and the desirability to protect such an invention in any way. 1 Background As part of a 3 year European Commission (EC) study1 on the effects of software patents on innovation we are involved in a multi-disciplinary effort to understand the effects of software patents. These effects are studied from legal, economical, and computer science perspectives. This paper is a sequel to our [4]. In that paper a proposal is formulated for an IPR-based software engineering life cycle and it is argued that only when an IPR-based software engineering life cycle is used a rational strategy towards software patenting, software patent licensing as well as IPR defense is possible. Further an extensive discussion is given regarding the problem of so-called trivial patents. These seem to undermine the vitality and usefulness of the software patenting system. A number of examples of patents and patent applications that may be considered trivial is given. Long term strategies are discussed to remove trivial patents from the scene. Further a research agenda consisting of a number of promising research questions concerning software patenting is worked out in significant detail and several policy recommendations are made. 1Study of the effects of allowing patent claims for computer-implemented inventions, a joint study by MERIT (University of Maastricht, Netherlands), Centre of Intellectual Property Law CIER (University of Utrecht, Netherlands), Centrum voor Wiskunde en Informatica (Amsterdam, Netherlands), Telecommunication Engineering School at the Universidad Politécnica de Madrid (UPM), Spain and Centre for Research on Innovation and Internationalization (CESPRI) at Bocconi University, Milan, Italy.