Software Patents Research Articles

Legally speakingAre business methods patentable?

How the U.S. Supreme Court's forthcoming decision in the Bilski v. Doll case is expected to affect existing and future software patents.

An analysis of the effect of software intellectual property rights on the performance of software firms in South Korea

Abstract This paper explores the effect of software intellectual property rights (IPRs) on the performance of software firms in South Korea using the statistics of software copyright registrations and patent applications along with the financial statements of firms. According to our empirical results, RD firms in the software industry prefer to copyrighting, whereas firms in the manufacturing industry prefer to patenting. In addition, software copyrighting has a positive effect on software revenue and total revenue of firms, but software patenting fails to show a positive effect on software revenue. Consequently, in contrast to the prevailing consensus indicating a high preference for patenting, it is obvious in our analysis that software copyrighting is more beneficial for software firms.

Patenting of Software: Trends in US & UK

This Paper emphasizes on the concept and nature of computer software, patentability issues relating to software related invention, international position on protection of software as patents specifically in US & UK, merits and demerits of software patenting and economic implications. As the software patenting is an American phenomenon we will mostly emphasizing on the trends followed in US.

Access to Knowledge in South Africa: Country Study Version 2.0

A study of access to knowledge in South Africa undertaken by University of Cape Town Intellectual Property Law Research and the Internet and Society Project of Yale University, investigating copyright, access to learning materials, research policy, open standards, software patents, and open educational resources in South Africa.

An Empirical Analysis of the Adjudication of Patent Cases by the Court of Appeals for the Federal Circuit

The enforcement of patent rights affects the scope of the monopoly rights provided by them and hence the incentives they provide. Greater likelihood of a pro-patent decision by the enforcement mechanism provides a larger scope of monopoly rights. I investigate the likelihood of a pro-patent decision by the Court of Appeals for the Federal Circuit in patent cases to see how it varies with characteristics of the patent, the litigants and the litigation itself. This model corrects for the fact that not all patent cases get appealed after trial by incorporating a selection model for the appeal of cases. I also incorporate the litigants' uncertainty about appealing a case using a heteroscedastic selection model. I estimate the model using simulated maximum likelihood and use the GHK simulation method. Results show that overall the Court of Appeals for the Federal Circuit is an anti-patent court. However, significant differences exist between different classes of patents with drug patents being more likely to be decided pro-patent than software patents. The Court of Appeals for the Federal Circuit is found to defer to the decisions of the lower court. We also see an increased likelihood of a pro-patent decision by the appeals court with an increase in the proportion of republican judges on the bench.

Valuing Patents for Licensing: A Practical Survey of the Literature

A number of methods exist for valuing a patent in order to license it to an external party. Several of these methods are well accepted in academic circles, others are merely tolerated as expedient. None of the existing methods, however, appears poised to easily accommodate software patent valuation in the face of open source software. Open source software distributors do not earn revenues directly from licensing source code. Even forprofit open source enterprises, such as Red Hat, provide software as part of a service bundle, not as an individually priced product. The problem of linking a patent to a stream of revenue generated by a bundle of goods holds for many service-oriented businesses, with open source as an extreme case. The increasing prevalence of service-based business models suggests that new thinking about how to put a price on patented innovations may be required. In addition to the basic problem of placing a dollar value on an innovation, new thinking on the incentives at play in license negotiations may also be necessary. In other words, do any unique principal-agent problems between patent holder and licensee surface as a result of the open source business model‘ Do any other licensing structure issues need to be worked through in order for existing theory to fit an open source environment. Before any of this 'new thinking' can begin (or is even warranted), though, an assessment of the current state of art is in order. This paper reviews the academic literature on valuing patent licenses.

Patents, Thickets and the Financing of Early‐Stage Firms: Evidence from the Software Industry

Legal changes in the patentability of software since the mid 1990s have resulted in a substantial increase in the number of patents on software inventions. We focus here on the impact of transactions costs associated with patent “thickets” on new entrants' interactions with the capital markets. Using data on the financing of entrants into 27 narrowly defined software markets, we show that start‐up software companies operating in markets characterized by denser patent thickets saw their initial acquisition of VC funding delayed relative to firms in markets less affected by patents after the mid 1990s. The relationship between patent thickets and subsequent financing activity such as IPO or acquisition is more complex, but there is weak evidence that firms without patents became less likely to go public if they operated in a market characterized by patent thickets. Firms with patents are more likely to be funded or experience a liquidity event. However, the application for a patent appears to matter more than its grant.

Introduction to the Special Issue on Economics and Strategy of Entrepreneurship

This special issue is the outgrowth of a 2007 conference, Entrepreneurship: Strategy and Structure, sponsored by the NBER Working Groups on Entrepreneurship and Innovation Policy and the Economy. The aim of the conference and special issue are to provide a forum for rigorous frontier research on the microeconomic and institutional foundations of entrepreneurship, and the strategic and market consequences of entrepreneurial activity. The papers included in the Special Issue include a subset of papers presented at the conference as well as papers submitted as the result of a solicitation for the Special Issue from the journal. As with all special issues in JEMS, all of the articles in this issue have gone through the standard editing and refereeing process that is applied to all submissions to JEMS. We would especially like to thank Dan Spulber, Josh Lerner, and Bob Strom for their help throughout the process, and the Kauffman Foundation for providing support for the original NBER conference. Although traditional research in economics has mostly ignored entrepreneurship, or otherwise equated it with a mechanism for finding market equilibrium, economists have made considerable progress more recently in understanding the economic foundations and consequences of entrepreneurial activity. Applying frontier theoretical and empirical

UK software patents – Get with the program

Computer-implemented inventions feature in almost every field of technology, and although improvements to computer-based devices are routinely made in software, the circumstances in which patent protection is available remains unclear. The patentability of software varies considerably from jurisdiction to jurisdiction. Worryingly, there are variations in form, if not in substance, between patent offices working from the same legal source. Against the background of a sea change in the US position, there is the prospect of a clarification of the European Patent Office approach that will provide a platform for consistency in Europe. This paper focuses on the UK position, highlights the tension between the UK and the EPO and considers the key questions before the EPO's Enlarged Board of Appeal.

Nothing Really Matters? Empirical Evidence on the Effects of Software Patents On The Motivation of Free/Open Source Software Developers

The debate about software patents (SWP) in the EU has been accompanied by massive lobbying by both proponents and opponents. Particularly Free/Open Source software (FOSS) advocates have expressed concerns that SWP will affect FOSS developers negatively. Yet, policy makers have no systematic data that would enable them to decide on this question, which in the past has led to divergence in software patent policies of the US and the EU. This study presents a first attempt to tackle this question empirically by focusing on the effects on developer motivation as one of the key driving forces behind the performance of the FOSS system. Arguments and hypotheses for both sides were formulated and tested against a new data-set from a large, dedicated developer survey. Initial findings are: (1) actual SWP incidents are rare events and the presence of SWP in general has no significant effect on FOSS developer motivation; (2) empirical results do not lend significant support to neither SWP proponents’ nor SWP opponents’ hypotheses; (3) measuring the presence of SWP in a meaningful way proved to be very difficult; accordingly, three different measures are discussed. The conclusion offers some advice for policy makers and suggestions for further research.

Law and Economics of Software Patent Disclosure

Law and Economics of Software Patent Disclosure

Collaborative Approach: Peer-to-Patent and the Open Source Movement

The patenting of software has increased significantly. Regardless of any personal bias as to the existence of software patents, it is a trend that is unlikely to end anytime soon. As a result, the open source movement may be threatened by the proliferation of non-meritorious or overly broad patents. Peer-to-Patent provides a means for mitigating the limitations that may be placed upon the open source community by software patents, as the program allows the open source community to participate in the peer review of pending patent applications. Members of the open source community are knowledgeable, interested parties with a unique stake in the software patent debate and thus are capable of making a significant contribution to improving the current system.

Software patenting in a state of flux

Computer software is an essential resource for database marketers, with a wide variety of products available with increasingly sophisticated functionality. However, some database marketers and the software companies that supply them may not have considered the extent to which such software products can be protected as patented inventions. This issue has been the subject of much debate in recent years, and has led to various high-profile cases in both the English Patents Courts and the European Patent Office. This paper looks at the current state of play and assesses whether we are any closer to knowing what is patentable and what is not.

Globalization of Software Research: Does the Us Have an Advantage in Applications?

Does the US have a comparative advantage in research on applications software? We classify software patents into applied and upstream software based on a unique classification algorithm. We offer empirical evidence that research on applied software is less likely to be conducted outside the US than that on upstream applications. We hypothesize that this comparative advantage is due to the presence of lead users of software within the US, and offer some evidence in support of this hypothesis. We also find evidence that the propensity to self-cite offshore research is higher for applied software than for upstream, suggesting that US firms may use internal knowledge transfers to mediate the needs of lead users.

Knowledge Work and Intellectual Property Rights: New Challenges for Trade Unions

In a society where knowledge has become the main factor of production, intellectual property rights are an important issue in social conflicts. However, in the current debate about the reform of intellectual property (IP) law, the trade unions are playing hardly any role, although the new regulations have an impact on employed and self-employed workers as well as on the power relationship of labor and capital. This article is intended to provide a theoretical discussion of IP law issues in the context of labor market changes. Using the example of software production, the article raises two questions: What kinds of strategies does management apply to control and exploit knowledge workers? How do software patents and free software practices affect their workplace rights? The article deals with these issues on the European Union (EU) and the national level by focusing on the role and behavior of German and Austrian unions. Although these unions have become increasingly aware of the impact of IP law, they are struggling to find a common position that is fitted to defend the rights of their highly skilled (potential) members. We conclude that unions should refrain from a blind adherence to strong intellectual property rights. They should rather contribute to the creation of a new balance between free access to knowledge and culture and the protection of the individual rights of workers.

Is It Ethical for Patents to Be Issued for the Computer Algorithms That Affect Course Management Systems for Distance Learning?

This article discusses the impact of patents for computer algorithms in course management systems. Referring to historical documents and court cases, the positive and negative aspects of software patents are presented. The key argument is the accessibility to algorithms comprising a course management software program such as Blackboard. The algorithms claimed in the Blackboard patent are critical to the development of distance learning. The impact of patenting these algorithms in the field of online education is evaluated using three ethical frameworks. As education moves online, it is important that distance learning be allowed to develop freely unencumbered by software patents.

Software Patentability in a Grid Environment

This Paper is aimed to address the most relevant issue linked to the patentability of software that (i) allows a Grid network to operate or (ii) are merely distributed through a Grid according to the applicable European and international legal framework. In particular, after having assessed why applying for a patent application should be an interesting opportunity for Grid companies, the following issues will be taken into consideration: an overview of patentable inventions in the area of software; the state of the art as regards patents and Grid; the proceedings to get a patent granted by the European Patent Office; the so-called Euro-PCT procedure; a comparative analysis concerning the effects of the granting of a patent and of a patent application in some selected European countries.

Patenting the Curve Ball: Business Methods and Industry Norms

This Essay argues that 35 U.S.C. s. 101 should be reinterpreted with respect to process patents by asking whether an ordinary skilled in the art would consider the class of processes at issue patentable. After reviewing the debate over business method patents, the Essay concludes that the all-or-nothing approach advocated by most commentators (either reinstate the business method exception or let almost all of them in unless Congress creates a specific exemption) are flawed because they ignore the substantial costs that these patents are imposing and cannot overcome the inability to define a business method. Furthermore, the imposition of patents on professions or communities that are hostile to them yields no real benefits and is actually harmful because it undermines sharing norms and gives defectors more leverage. Consequently, I propose expanding the ordinary person test of 35 U.S.C. s 103 to cover subject matter under s 101 and require claimants to show that a norm exists within the given business in support of process patents. The Essay concludes by considering the advantages and objections to this change with a particular eye towards how it would affect software patents.

Software patents in Europe: the technical requirement dilemma

Software patents in Europe: the technical requirement dilemma

What Kinds of Computer-Software-Related Advances (if Any) Are Eligible for Patents? Part I

To what kinds of thing should the patent system apply is a question that has troubled the US courts since the middle of the 19th century. The grandiose dreams or delusions of Samuel Morse brought the question to the Supreme Court in 1850, when the validity of his patent on the telegraph was challenged. The author traces developments in the Court's decisions on patent eligibility from that case to the present, focusing particularly on the patentability of software and processes.