Patents and Software Innovations: Global Perspectives

INTRODUCTION

It has always been a gray area especially when it comes to relation between patents and software developments. As for the latter, there have been different solutions striving to solve the same on a worldwide level. Various nation-states, on some level, have embraced or rejected the desirability patentability of software innovations. For example, the United States had initially more liberal policies regarding protection of software patents than some of the European countries.

Until recently in the United States, software patent were offer for many years with the promotion of innovation and patent infringement suits that accompanied it. But over time, as more legal precedents were laid down regarding the status of a patent, it became somewhat difficult to obtain a patent for certain types of software.

Among the agreements internationally like the Agreement on Trade- related Aspects of Intellectual Property Rights (TRIPS), were aimed at providing minimum standards for intellectual property protection which included patents. It essential to note that these interpretations and, consequently, the implementation of these standards differ from one country to another.

Moreover, new problems appear as the technologies are developing from time to time. Patenting of software technologies encompasses inventions like AI and machine learning algorithms, has led to a discourse in terms of impact on innovation, ethics, and fairness.

In an international perspective, the connection between patents and software inventions has remained a contentious issue to the present day as well as the change of legal frameworks of certain countries as well as constant evolution in IT technologies. Between them, countries also have to account for creating an environment that encourages development through patents while stopping short of excessive broad patents that would disrupt fair competition and creative output in software production. It remains in flux to the present day because new technologies come into being and new laws are developed to offset the problems created by software advancements. Virtual Reality (herein after as VR) can be defined as the use of computer technology to create an artificial environment. different approaches to address the same on a worldwide level. Different countries on a whole level have adopted varying stances on the desirability of the patentability of software innovations. For instance, the United States had traditionally allowed broader patent protection for software, while some of the European countries were more restrictive.

In the United States, software patents were granted for many years, leading to both innovation and patent litigation. However, as the time passed the criteria for the patent eligibility evolved through court decisions, which made it quite challenging to patent some types of software .

Some of the agreements internationally like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) set minimum standards for intellectual property protection which included patents. However, these interpretations and implementations of these standards vary from one country to another.

Furthermore, as technology evolves over time, new challenges arise. The patenting of software-related innovations, such as AI and machine learning algorithms, has generated discussions about the impact on innovation, ethics, and fairness.

In a global context, the relationship between patents and software innovations remains complex and subject to ongoing changes in law and technology. Countries must also navigate the delicate balance between incentivizing innovation through patent protection and ensuring that overly broad patents do not hinder competition or stifle creativity in the software industry. The landscape continues to evolve as new technologies emerge and legal frameworks adapt to address the challenges posed by software innovations.[i]

EMERGING TECHNOLOGIES: METAVERSE AND VIRTUAL REALITY

The emergence of technologies like metaverse and virtual reality have not only been transformative on a huge level but has also somehow changed or we can altered the way we interact digitally. The metaverse[ii] is a collective and virtually shared space that is created by the convergence of physical and virtual reality. It is a space where users can interact with a computer-generated environment and other users in real-time. Companies like Meta (formerly Facebook) envision the metaverse as the next evolution of the internet, where people can work, socialize, and engage in various activities in a virtual environment[iii].

Patent Software
[Image Sources: Shutterstock]

Virtual Reality[iv] involves the use of computer technology to create a simulated environment. People can enjoy this fake reality through virtual reality headsets, and they communicate with the virtual world and its objects with the help of additional controllers. VR has applications various industries, including gaming, education, healthcare, and training simulations.

VR plays a crucial role in the metaverse experience, providing users with immersive interactions and a sense of presence in the virtual world. As the metaverse evolves, VR technologies are likely to become more integrated, offering enhanced social and collaborative experiences.

LEGAL CHALLENGES IN PATENTING SOFTWARE INNOVATIONS

Software scientists often use patenting to protect their innovations, but the process raises several legal issues because of the specific characteristics of software and the dynamic nature of patent law. Some key legal challenges  in patenting software innovations:

PATENT ELIGIBILITY AND SUBJECT MATTER: However, some difficulties with regard to evaluation of what exactly may qualify for protection under patent laws still persist in a number of jurisdictions, such as the US. The question of whether and how a software invention may be considered abstract and not eligible for patent protection can be a challenge for courts and for the patent office.

PRIOR ART AND OBVIOUSNESS: Another one of the legal issues with regard to software patents is showing the novelty and the non-obviousness of a software invention which is necessary to meet a prescribed threshold to be granted a Patent. However, due to the changing times and young and dynamic growing field of technology. It can be difficult to look for prior art that is related to the case and therefore prove the non-obviousness of a particular software innovation.

RAPID TECHNOLOGICAL CHANGES: Technological development in the ever expanding software industry presents a challenge we see in the patent system. By the time a patent is granted the relevant technology may change, and as a result the invention patented may have little value.

GLOBAL VARIATIONS IN PATENT LAWS: Patent laws are not uniform around the world and it is also not easy to secure protection for software inventions on the international level. The laws of various places may not be alike as to the extent of patent protection or as to which software patents they allow or reject.

OPEN SOURCE AND LICENSING ISSUES: Moreover, the choice of the Open source software and licensing agreements can also pose a threat to the patenting process. Developers often use open source licenses that prohibit the applicant’s ability to obtain patents for innovations and the issues of patent law and open sources are quite opaque.

Addressing these legal issues involves careful consideration of the technological and legal dimensions of software improvements. Those into developing inventions, software companies, and lawyers in the software field must embrace the following.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] Patent protection for software-implemented inventions (no date) WIPO. Available at: https://www.wipo.int/wipo_magazine/en/2017/01/article_0002.html (Accessed: 11 November 2023).

[ii] Tucci, L. (2023) What is the metaverse? an explanation and in-depth guide, WhatIs.com. Available at: https://www.techtarget.com/whatis/feature/The-metaverse-explained-Everything-you-need-to-know (Accessed: 11 November 2023).

[iii] Council, B. (2023) Metaverse vs. virtual reality: A detailed comparison, Blockchain Council. Available at: https://www.blockchain-council.org/metaverse/metaverse-vs-virtual-reality/ (Accessed: 10 November 2023).

[iv] ibid.

Leave a Reply

Categories

Archives

  • February 2025
  • January 2025
  • December 2024
  • November 2024
  • October 2024
  • September 2024
  • August 2024
  • July 2024
  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010