Free Patents
Protecting Innovation & Competition in the IT Industry
International
The World Trade Organization is conducting international agreements on intellectual property.
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.
The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability.
Now, should software be patentable ? According to the this, software may be excluded from patentability if they do not have industrial applications per se. However, a footnote states that "industrial application" may be deemed by a Member as a synonymous to "useful".
Our interpretation of the TRIPS agreement is that states who want to adopt software patentability may do so while states who want to reject it may keep on rejecting it.
License-based patent protection
It is possible to use license-based IP (such as copyright) to get some kind of international patent-related protection that goes beyond national laws. For example, Netscape and IBM open source licenses include termination clauses related to patent infringement. For more information, you may read this.
In 1999, Apple introduced a new kind of open source license which forces patent exchange as soon as someone introduces a piece of source code protected by some patent.
You hereby grant to Apple and all third parties a non-exclusive, royalty-free license, under Your Applicable Patents and other intellectual property rights owned or controlled by You,
The Apple license goes even beyond : anyone starting a patent infringement action will see his (or her) copyright license terminate.
This License and the rights granted hereunder will terminate automatically without notice from Apple if You, at any time during the term of this License, commence an action for patent infringement against Apple.
Because the extent of copyright licenses is automatically international, this kind of license really acts as an international protection against patent suits from anyone using your source code.
Software patents are illegal in Europe. However, some European countries do not fully enforce the European Law. The European Patents Office is currently holding software patents filings which come mostly (75%) from US companies.
The European Union is considering introducing software patents in the European Law.
USA
Software patents are legal in the United-States. More than 20 000 software patents are filed every year in the US.
Other sources of information on US patent law
Japan
Software patents are legal in Japan. More than 35 000 software patents are filed every year in Japan (8% of the total amount of filed patents in Japan).
Sites & links
Links adviced by the IPR-Helpdesk of the Europpean Union
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