Software patents. Really?
"Code is poetry."
(Author unknown)
All well and good. But is that enough?
Software is primarily intended to accomplish tasks and control devices. The question of whether the source code has poetic elegance is a secondary consideration in the commercial world.
Although the source code enjoys copyright protection, it would always be possible for the same functions to be programmed in a modified way. Variations such as these remain unprotected. Thus, in practice, it is often the case that the only function of the copyright protection of software is to provide a certain amount of protection against identical pirating.
Software is expressly excluded from patent protection under the European Patent Convention. But only software per se. In practice, it is indeed possible for patent protection to be achieved if the software impacts in a novel and inventive way on the real, material world. The term computer-implemented inventions is often used in this regard.
What does that mean?
It is often advisable to patent a novel and inventive method of working of a machine when it is clearly evident, when the machine is in operation, how this method works. If the claims are worded appropriately, it is also possible to protect the associated control software, indeed in a much more comprehensive manner than is possible by means of copyright law.
However, let us take the example of a method for controlling a machine. By means of a particularly skilful selection and combination of measurement and control variables, the machine can be operated in a particularly energy-efficient manner. Let us also assume that the decisive details relating to the control are not readily discernible when the machine is in operation, but would only be able to be worked out with a considerable amount of effort. This would in practice at least offer a certain degree of protection against imitators. However, in a patent application, at least the basic features of this method would have to be described. The patent application is published and this knowledge would thus become public – which might then give competitors ideas...
Thus, the question of whether patent protection could actually be achievable should never be the only one that is looked into. If it were the case that an infringement of the patent could in practice hardly ever be identified, it could be much more advantageous to dispense with a patent application.
As you can see, for us, a deliberate decision not to make a patent application is all part of: