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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].
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.