Bakels, Reinier B. --- "Are Software Patents Something Special?" [2011] ELECD 976; in Arezzo, Emanuela; Ghidini, Gustavo (eds), "Biotechnology and Software Patent Law" (Edward Elgar Publishing, 2011)

Book Title: Biotechnology and Software Patent Law

Editor(s): Arezzo, Emanuela; Ghidini, Gustavo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800402

Section: Chapter 6

Section Title: Are Software Patents Something Special?

Author(s): Bakels, Reinier B.

Number of pages: 22

Extract:

6. Are software patents something
special?
Reinier B. Bakels

INTRODUCTION

Software patents are problematic in two different ways: it is controversial
whether these patents are useful, and the bounds of software patentability
are unclear.
What is a software patent precisely? There is much confusion about
the nature of software patents. As we will see shortly, it is not a clearly
defined category. Therefore, it is irresponsible to make specific and generic
statements about software patents. Still, doubts about software patent
efficiency are not unfounded. As we will see, `software' is primarily a risk
factor for a socially undesirable use of patents.
In European jurisdictions, software is excluded from patentability
in certain cases, even if it is novel and non-obvious, and even under
American patent law, software is not always patentable. In Europe,
patents are only granted for technology, Americans exclude abstract
ideas. But what is `technology'? And what `abstract'? Even after recent
decisions of the EPO Enlarged Board of Appeal,1 and the US Federal
Supreme Court2 the limits of software patentability are still not very
clear.
This contribution focuses on some selected topics that are essential
for a better understanding of the widely voiced concerns about software
patents, and opportunities for improvement.




1 Enlarged Board of Appeal of the EPO (hereinafter: EBoA) 12 May 2010,

case G 3/08 (Programs for computers).
2 See U.S. Supreme Court 28 June 2010, case 08-964, 130 S.Ct. 3218, 2010 WL

2555192 (U.S.) (Bilski v. Kappos).

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