Do Apps Deserve Patent Protection?

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App is an abbreviation for application, and is a piece of software that runs in our web browser. Software is the non-tangible part of the computer that we sometimes call programs. We have fully embraced apps as convenient software and use them on the Internet, computers, phones or other electronic devices everyday. The ubiquity of the internet has made this application very popular. All apps are software, but not all software is an app. Therefore, apps should not be different from other software when it comes to patent eligibility. But does an app qualify as an intellectual property?

Intellectual property refers to creations of the mind like inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. This implies that any raw idea which is a creation of the mind, even if trivial, amusing or even stupid, will suffice. The originality and exclusiveness justifies conferring the exclusive right upon the inventor.

Some situations cast doubts on the worth of the intellectual property status when the “owner” cannot easily achieve the monopoly of copying or distribution of the protected “property”. One such invention is “the comb-over”; a method of styling hair to cover partial baldness using only the hair on a person’s head patented by Frank and Donald Smith. The inventors felt that the cost of covering bald areas by hair transplants, hair weaving or hairpieces can range from a few hundred dollars to thousands of dollars depending on a person’s choice and financial means and if a person a grows one side longer he could sweep it over the top.

This concept may be original but it is uncertain how they could enforce the exclusive rights. Nevertheless, it was then new and useful and the inventors benefited from a new hairstyle and probably worked on a hair spray that kept it in place. I find this interesting, and it was a great enough achievement in human history to earn them a Nobel Award for Engineering.

Over time, our preoccupation is to be careful not to not to break the patent system by patenting mere ideas. There may be a general consensus that an app falls within the category of invention and hence is an intellectual property, but arguments exist against its eligibility or the eligibility of software generally for such protection. Many people question the patentability of software.

In Europe, the European Patent Convention (EPC) provides that inventions which are susceptible of industrial application, which are new and which involve an inventive step are patentable. It provides a list of things that “in particular” shall not be regarded as inventions. This does not exclude the patentability of all computer programs but those with applications outside the areas which are currently considered to be “technical” by the jurisprudence of the European Patent Office. The focus therefore is on the context which excludes software patentability. But the Office is known to have granted some “software patent” as intellectual property”.

The pro-software patent lobbyist claim that it will encourage a strong and vibrant technology based industry. If software development is considered an invention, if follows that without patents, software developers have no chance of protecting their ideas from exploitations. They ague that software should be patented for the following reasons:
1. Inventors are entitled to their intellectual property rights.
2. Patenting ideas will achieve a great deal of motivation on individuals and corporations and encourage invention.
3. Software may cost many thousands of pounds to develop but can then be copied for a few pennies
4. Protecting software inventions will likely promote investment in research and development and eventually new technologies.
5. Software invention requires considerable investment that should be protected.

Many critics, on the other hand, have argued that patent system is not suitable for software. They condemn the idea of patenting software. They insist that some software inventions do not have enough technical character as required by the law. More significantly, it will lead to the accumulation of patents in large companies, making life very hard for small companies and individuals.

Although the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires patents to be protected, but “protecting” does not necessarily imply “patenting”. Some believe that the fact of patenting only technical software is a myth. Why patent some if you cannot patent all. According to Robert Barr of CISCO, “The time and money we spend on patent filings, prosecution, and maintenance, litigation and licensing could be better spent on product development and research leading to more innovation”.

In US, the Patent and Trademark Office was historically of the opinion that patents could not be granted to scientific truths or mathematical expressions of it. They viewed computer programs as “mere mathematical algorithms, and not processes or machines.” The decision to patent software in the US came after several court decisions show that patentability of software depended on the claims raised by the patent attorneys.

Those who oppose software patentability believe that the patent system may not be suitable for software for the following reasons:
1. It prevents competitive markets by giving large players absolute control over small to medium software enterprises.
2. Copyright Laws provide sufficient protection and are less expensive.
3. It creates monopolies on abstract ideas and inventions that could easily be invented.
4. Legal actions involving intellectual property issues are very expensive, slow and unpredictable.
5. It prevents innovation and introduces substantial business risk that will discourage investment.

Different jurisprudence may have different takes on softwared patentability. Part of their consideration may be the influx of apps in today’s software market. The US has a great experience in this area and has benefited from software patent. So it supports it and uses bilateral trade agreement to pressure other countries to expand their patent laws. In Japan, patented software must involve an advanced creation of technical ideas, and New Zealand recently passed laws to not allow software patents.

Despite these conflicting opinions, I believe it is crucial to protect the software industry, especially independent software developers whose interest may be unduly affected by the patent positions of larger companies. Software invention requires considerable mental and sometimes financial investment that needs to be protected. According to Harald Hagedorn, “…software is a multi-billion dollar industry with expected growth-rates of 10% p.a. during the next years … like in any other industry such growth can only be sustained if patents are available”. However, a patent system without any credibility will obviously cease to hold any sway.

It is necessary to consider that most developers cannot afford the enormous amounts of time and money that a patent law will require them to invest in their software products. The implication is that ideas may get stolen or patented by only those who can afford it. After all, a prior patent extinguishes all other rights. So our patent system should be made less complicated and easily accessible.

But here is the biggest deal though; even if you have a patent you still have to enforce it. Good luck with that if you choose not to consult a patent attorney. On the other hand, software creators must always consider nuances to explore when looking at whether it makes any financial sense to pursue a patent.

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