Patenting a software invention

Application and maintenance cost of software patent takes away the financer from research and development

Several pioneers of software industry take a back step due to the application and the maintenance cost of the software patents. As a result a huge set back has been seen in the Research and development field. In the field of software patent, with a very small improvising we can file a patent application. So, we can file a en number of software patent due to which their increase the chance of infringement. As their arise the prior art issue. Which block the marketing as well as the licensing of the software product and directly affect the financer for investing in patenting the software. (Machlup, Fritz.,”An Economic Review of the Patent System.”2007)

6.2. High defending cost of infringed patent and its uncertainty.

Although before filing a patent application the developer give the responsibility of freedom of search to a experienced attorney but there is always a chance of incomplete search.This issue arise because of the different ways of expressing the same idea in different published patent. As a result all the patent under the same subject matter cannot comes in the search strategies.This Clearance search or FTO(Freedom to operate) cost is $US 2,000 for a simple search strategies which is increased with the complex strategies. Many inventors fail to go through this search and they change their mind of applying a patent application. (Hunt, Robert M. “Patent Reform: A Mixed Blessing for the U.S. Economy”1999)

6.3. Investor is more interested in copyright of software invention

Tradition copyright gives a protection to the author(s) of a software invention from the use of his innovative work without his knowledge. Again copyright law, licensing is also not required. As a result of copyright of his invention the inventor can sue the people who copy his work without his concert’s we all know that when we create a work it is automatically under copyright law. There is no compulsory to to register in the copyright office although it is advice to do so.

The other advantage is that the secrecy of the software invention can be kept in case of copyright. This is not possible in the case of software patenting.Because once you applied for the patent you have to expose all the steps and the methodology. Again the infringement problem which is a big issue in patenting can be solved with much easier in case of copyright. The copyright is also much cheaper than the patent process and the inventor gets much more time limit for their creativity. This above point makes the inventor strong enough to go for copyright protection rather than patenting of their innovative work. (Grindley, Peter C., and Teece, David J.“Managing Intellectual Capital: Licensing and Cross Licensing in Semiconductors and Electronics,”2006)

6.4. Software patents fails to overcome the non obviousness criteria.

Since the patent attorney fails to understand the technical aspect of software invention. Again the number of examiner in this said field is very less. So the patent in software are granted on creation that seems to be trivial extensions of the prior art.

As a result of which, when the patent comes to the public domain any common man can arise the voice against the granting of patent as well as the invalidity issues. In US there is a re examination procedure while in European patent office opposition litigation takes place. This opposition takes a long time which makes the patenting quite uncertain. (Bessen, James, “Patent Thickets: Strategic Patenting of Complex Technologies,”2003)

6.5. Long time span of publishing a patent affect the popularity of the product in the market.

The criteria for a patent are that, the subject matter should not come to the public domain until the application is not placed in the patent office. The granted patents are issued after a time span of 18 month. Although the USPTO (united state patent and trademark office) have a much relaxing criteria. They give a 12 month grace period between the disclosure of the novelty to the domain and filing of their invention. Again, according to the US law, the inventor enjoys a different jurisdiction on offering the patent rights to other countries. Although the patent Reform Act 2005 is not happy with these law and wants to enforce the rule of publishing the patent after 18 month of application. The law is not yet accepted by the US congress and it is in pending status from June 2006. (Hunt, “changing treatment of software in patent law” 2001).

6.6. Infringement issues in patenting process is time taking and expensive

One of the major drawbacks of software patenting is the expenses that the defender faced while the author of other patent sued them for using their invention without their concert or licensing. Again this process is very time taking. (Hunt, Robert M. “Patentability, Industry Structure, and Innovation,”2006)

6.7. Notice of infringement is huge cost effective.

When any company uses the software product of other company with out the license. Then he will get the infringement notice.Sometimes the damage revenue of infringement is so high it is normally not possible to pay back by the companies to the patent owners.So many companies don’t wants to go for software patenting. (Bessen, James, “Patent Thickets: Strategic Patenting of Complex Technologies”2003)

6.10. Confusion in patenting a software invention

We know the simple fact that ideas are patented for patenting any invention it have to be novel.usefull and non obvious. The problem that we faced for patenting a software is that .their always remain a confusion about the invention as the software is based on the ideas. So there is no clear format which subject matter is merely a idea and which is a invention. (Bessen, James and Robert Hunt. 2004. "An Empirical Look at Software Patents”2005),

6.11. Mathematical algorithm is not patentable subject matter.

We all know that mathematical algorithm is a non patentable subject matter. Since software depends upon this algorism so software invention is not accepted for patenting
However a process taken for creating a tangible form can be patented. That creation cannot be rejected on the ground of algorithm. US, UK and Japan have accepted this fact and lots of patent have been granted on this said ground. (Bently,Lionel, “Intellectual property” 2001)

6.12. Examination for granting a software patent is very time taking

It has been reported by the year 2005 the total time taken for granting a patent in US in the field of software is three and half years. . Similarly in UK the time span is Four years. It is noted that computer based invention took more time than the other fields patent. Due to this time span the inventor and the investor fails to draw the profit that they have expected from the product. Again there is a huge scared of piracy as a result of which the invention comes to the public domain before the patent is published. This is the huge fear which always hammers the inventor and stops them for applying for patent. (Hunt, Robert M. “Patentability, Industry Structure, and Innovatio,”2004)

6.13. Certainty is very difficult in case of software patent.

We all go for a patent for the monopoly right which not only give the legal right to use the product but also help them a financially by selling the product to others or issue license. But in case of software patent the consistency in the economic aspect is not so steady in case of software field. This in consistency is not a very good for the economical aspect of the software industry. So lot of difulties comes to set the strategies for marketing and licensing the product. (Ashish Arora, Marco Ceccagnoli, and Wesley M. Cohen.. “R&D and the PatentPremium,” 2003)

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