How Innovative Is Your Software And Can You Protect It?
Monday, October 10, 2005
by
Colin Miller
With the advent of digital technology companies are now striving more than ever before to improve their tools for marketing their products and services. This may often involve the development of innovative software products. However how easy is it to protect software from a legal perspective?
Traditionally the main form of legal protection for software has been copyright. This protects the actual source code, namely the instructions written at source by the software programmer. In this country a developer of a program will have exclusive rights to use the code for 50 years from the date when it was written.
Copyright will be infringed by copying the source code. This issue was highlighted recently in the English courts in a case involving EasyJet. In that case the issue was whether EasyJet had infringed software developed by a major supplier of budget airline software in circumstances where EasyJet had copied the functionality without ever having had access to the code.
EasyJet had had a licence to use Navitaire’s programme for an on-line ticketless reservation system. EasyJet wanted to produce its own software programme and commissioned another person to develop an equivalent programme using the same user interface and functionality. This is sometimes referred to as claims to the “look and feel” of the software. However it was always accepted that EasyJet never had access to Navitaire’s source code and that the computer coding of the two programs in dispute was different. At the end of the day the courts ruled that what had essentially been copied was the business function of carrying out the transaction on line and creating a record. This makes sense – if the functionality of software programs were to be protected under copyright, this would prevent other software designers from developing competing programs in circumstances where there had been no copying of the original coding.
In addition to copyright, developers can seek to exercise some control over their own products by contract and software licences will contain restrictions on the ability of the licensee to exploit the software. For example, there may be a limitation on the number of users or the purposes for which the software can be used. Similarly, there will be restrictions on copying or decompiling – subject to certain limitations. The licensee may also be required to pay for any upgrades or new releases.
A more difficult issue is the extent to which software can be protected by patents. A patent is essentially a bargain struck between an inventor and the state. The inventor will obtain a virtual monopoly over his or her invention for a period of 20 years from filing the relevant application. The theory is that this encourages innovation and in return the inventor will disclose his or her invention and allow others to benefit. However in this country certain inventions are specifically excluded from being patented. These include mathematical methods, methods of doing business and computer software. This is based on the premis that if powerful market players can patent ways of conducting their business, then this will prevent others from entering the market.
It is now established in the UK that just because a software program is an excluded category does not necessary prevent a software related invention from becoming patentable. The exclusion only applies when a patent seeks to cover the software “as such” and this has now been interpreted by the UK courts to mean that patents can be granted for computer software if it brings about a technical effect which goes beyond the actual functionality of the software itself. However, the decisions of the European Patent Office have tended to suggest that the presence of any technical means in a claim is sufficient to avoid this exclusion. The US and Japanese authorities have also taken a more liberal approach and the result is that there are now inconsistencies between decisions of the authorities in the UK, Europe, US and Japan on the patentability of software.
For these reasons the European Commission sought to clarify the position in its draft European Software Patent Directive. Last year a significant amount of progress was made towards adopting the Directive and the Commission reached its common position on the Directive in March of this year. However, the European parliament rejected the Commission’s common position in July and this means that these proposals are not likely to become law in any form or shape within the reasonably foreseeable future.
European countries which operate across the world often regard themselves as being prejudiced because they cannot protect their software and business methods inventions in the same way as their competitors in the US and Japan. They argue that this prevents European software companies entering the US or Japan where there is more patent protection for software. Arguably this puts European software manufacturers at a disadvantage. Without any further help from the Commission, there is little that European software developers are going to be able to do to clarify the position.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.