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Monday, February 02, 2004

International Herald Tribune on CII patenting.

Mikael Pawlo has spotted an

article on CII patenting written by Jennifer Schenker in the

International Herald Tribune.

Unfortunately this article confusingly speaks of "software patents". "Software" cannot be patented in Europe and will not be patentable in any forseeable future. What today (and, I hope, also in future) in fact can be patented (under some restrictive circumstances) are computer-implemented inventions (CII), i.e. an invention that needs a programmed device for to be implemented or that might be implemented by utilising a programmable device. Patents on CII are directed to a certain functionally that can be expressed by a piece of software written to run on a specific processor.

And, ah, yes, computer software can be involved in a patent infringement case. If a piece of software is run on the specific processor, the emerging functionality might well fall under the scope of protection of a patent claim. The present calamities in the public dabate over so-called "software patents" do not originate from patented software but from infringing embodiments of a patented computer-implemented (or even implementable!) invention. Hence, amending the material criteria of patentabilty in patent law as attempted by the FFII is not a very selective instrument: Only if patents on each and every computer-implementable invention would be completely banned the FFII activists could be sure that no one tinkering with some piece of software is safe with regard to patent infringement. However, such policy would mean that the entire high-tech electronics industries would be cut off the patent system.

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