Much Pain for Little Gain? A Critical View of Software Patents  

The question whether access to patent protection for computer software should be made easier (for example by removing the restrictions that would allow a classification of computer programs 'as such' as inventions) would be in the overall benefit has exercised policy makers for quite some time. 'Better protection' of software-related innovations (compared to copyright protection) as well as 'better disclosure' of the underlying ideas and principles have been cited as the main benefits. This paper takes a critical view of these arguments, taking into account that in many cases the underlying ideas and principles may be most effectively be protected as trade secrets (in combination with copyright protection of the 'expression', i.e. the computer program as it is made available to the user). Giving software producers the option to apply for patent protection may not make much difference in terms of the information generated for the benefit of other innovators. Patent protection may be most attractive for ideas and principles that are to a large extent obvious or become apparent to the user. This might lead to a raft of patents for rather obvious 'inventions' (even if patent office searches were improved and patent applications were assessed more rigorously), which might cause little benefit but much friction in the process of innovation.

Koboldt, Christian. JILT (2003). Articles>Intellectual Property>Patents>Software