Sociology Index

IP in the software industry

Intellectual Property and the Internet, Domain Name Disputes, Internet Law or CyberLaw

Until the early 1970s the US Patent Office was refusing patents on software and mathematical algorithms per se, i.e. independently from a device using it. The protection of software was initially ensured by copyrights rather than by patents.

Personal computers brought explosive growth to the software industry and led to the beginning of software patenting in the US. The development of e-trading led to the introduction of patenting for business methods and multimedia.

A way of doing business “as such” cannot be protected; however, some protection for business methods may be obtained by claiming a new, inventive, technical method of implementing a business method. In the e-commerce arena there have been and continue to be technical innovations.

Likhovski et al. (2000) analyses the law in the US and Europe and includes a survey of the EPO and United Kingdom patent filings for business methods. The survey indicates that US companies are now filing significantly and proportionately more applications for business methods than their European counterparts.

In the EPO over the sample period: 52% of all patent applications for business methods were filed by US nationals. By contrast, over roughly the same period US nationals filed only 28% of all applications. In the United Kingdom Patent Office, 31% of all business method applications were filed by US nationals. In 1997 and 1998 US nationals filed only 10% of all patent applications.

Graham and Mowery (2001) and in Merges (1997)44 and Ordover (1999). The earlier history of the software industry and the use of IPRs to protect software and business methods (both by copyrights and patents) are documented.

Mowery, 1999 and by Mowery and Nelson (1999). Information on the evolution of the software industry, including the closely related aspects of IPRs evolution in Japan and Europe.

Merges (2003) discusses the likely impact of patents on financial services innovation and concludes on an optimistic note that patents for business methods are unlikely to create real and lasting problems.

Databases received in EU a “sui generis protection”, i.e. a specific right to protect them against copying. In Canada, as in the US, databases are protected by copyright and/or by business methods.

Database, their providers and users in Europe, US and Canada and their protection by IPRs are dealt with in Scotchmer and Mauer (2001) which cites Howell (1998) and Knopf (1999) as sources on database IPRs protection regarding Canada specifically.

David (2000). The problems and risks for the future development of open science posed by the EU's directive introducing sui generis protection of databases and similar initiatives in the US.