The Idea of Software Patent Protections

By Dr. Aunya Singsangob

Professor Samuelson raised four policy alternatives by which the law could deal with the software protection issues: (i) reliance on copyright alone to protect program innovation, (ii) limiting software patents to traditional industrial processes and machines, (iii) accepting a vast expansion of patentable subject matter and working to define an appropriate patent or copyright interface for computer programs, and (iv) sui generis legislation for the protection of computer programs. (64) However, King opined that the patent system represents the best mode of protection for software-related inventions as software-related inventions did not possess any special characteristics to distinguish them from other forms of inventions. (65) Thus, he proposed two independent amendments to the Patent Act that would help the patent system better accommodate software-related inventions: (i) Congress should consider restructuring the application procedure to defer the protracted examination period until after patent issuance, and (ii) the Patent Act should allow for the patentability of software as software, and not merely as an attachment to a machine or an article of manufacture.

5. Thailand

Section 5 of Patent Act 1979, (amended in 1992, 1999) provides that an invention that can be granted as a patent protection must be: (i) novelty; (ii) involves an inventive step; and (iii) is capable of industrial application.

However, like most other countries, computer software is unpatentable under Thai Patent law. (66) The reason is that computer software is not considered as an "invention" because it is not the idea of the product itself. Instead, the software is only the instructions given to the computers to perform the task to respond the users' needs.

Recently, there has been a push to implement the policies of the EU's software patent right directive. (67) However, there are differences of opinion between the IT specialist of Thailand Development Research Institute (TDRI) and the Director of Software Park Thailand. The former, Dr. Tangkitvanich, cautioned that Thailand should not rush to embrace all the directives because there were several flaws in some patent rights, especially the one regarding business methods, which are likely to hinder the growth of the country's infant software sector. (68) The latter, Dr. Hirapruk, argued that Thailand had to provide a patent-right protection for computer software to ensure foreign high-tech investors that software producers' creativity would be secured from violations in Thailand. (69) Mr. Sribhibhadh, president of the Association of Thai Software Industry, expressed concern that the most important thing was that Thailand needed a clear overview of the impact on the local industry if Thailand really had to fully implement the patent right protections. (70)

From some Thai economists' viewpoint, legal development of software patent will cause monopoly and innovation problems. Monopoly will thwart innovations of new software products, particularly open-source software. This phenomenon will threaten Thailand's software industry. In this regard, the Thai government tried to encourage the public to use open source software to avoid the software piracy problem. Thus, if the computer software is patentable, the choice of using free software will no longer available for the public. The problem of software piracy may then be revisited in Thailand.

III. CONCLUSION

The creation of a software patent has been considered by developed countries and by Agreement on Trade-Related Aspects of Intellectual Property Protection (TRIPs), World Intellectual Property Organization (WIPO), Copyright Treaty (WCT), and European Patent Convention (EPC). (71) These efforts reconsider whether computer software should be deemed patentable subject matter. However, the idea of the protections has been denied by many countries, especially developing counties.

Supporters of patenting software claim that the protections of the patent system are needed to provide an incentive for innovative software technology. Further, a software patent would also encourage competition. They reason that the developers of new software technology should have a right to a monopoly on the technology. On the other hand, opponents of patenting software argue that software patents would hinder free software, even the whole software industry. They reason that software development is extremely profitable and receives considerable investment without any restriction on independent software development. (72) Thus, they opine that there would be little benefit to society from software patents because innovation in software was flourishing without the existence of software patents. Furthermore, software inventions were normally published in journals for everyone to use. (73) Richard Stallman, a legendary hacker and the founder of the free-software movement, points that software patents are patents covering software ideas, which are mostly used in developing software. (74) He explains that, in developing computer software, software developers use lots of different ideas from a variety of sources. Thus, the software patent would create dangerous obstacles to software development. (75)

Opponents also argue that software inventors might accidentally use a technique that was patented, and then get sued for it. (76) In particular, one of the opponents said that there was no practical way within the patent system to eliminate the probable bias against basic research. (77) Likewise, the supporters of free software claim that open-source software increases competition in the software industry and thus increases the need for innovation. They argue that software patents would create the danger that redistributors of a free program would individually obtain patent licenses, in effect making the program proprietary. The worst problem is that third parties can also obtain patents for related products and thus gain control over software that they do not even write. (78) Accordingly, they believe that software patents might do more harm than good to the software industry. (79) Meanwhile, an economic studies group showed that software patents would stifle innovation and reduce productivity in the software sector. (80)

Asst. Prof. Dr. Aunya Singsangob received her Doctor of the Science of Law (S.J.D.) from Southern Methodist University, U.S.A. in 2002, Master of Law (LL.M.) (International and Comparative Law) from Southern Methodist University, U.S.A in 1993, Bachelor of Art (B.A.) (Communication Arts from Sukhothaithammathirat University in 1991, Bachelor of Law (LL.B.) from Chulalongkorn University in 1990. She also received a license to practice law from the Law Society of Thailand. She is currently a full time lecturer at School of Law, Bangkok University. Her academic publications include Law of Contract, English Legal Language, Legal Framework of Computer Software and Information Licensing in Emerging Markets (by Kluwer International Law Publisher in London). In addition, she produced many legal articles published in Barrister Journal.

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(64) Samuelson, supra note 59, at 1136-48.

(65) Chad King, Abort, Retry, Fail: Protection for Software-Related Inventions in the Wake of State Street Bank & Trust Co. v. Signature Financial Group, Inc., 85 CORNELL L. REV. 1118, 1179 (2000).

(66) Patent Act 1979 (amended 1999) ? 9 providing that "The following inventions are not protected under this Act: …..(3) computer programs."

(67) Sirivish Toomgum and Kwanchai Rungfapaisan, THE NATION, July 24, 2000, at 7.

(68) Newsbytes, Thailand Mulls Software Patent Rules, at http: //www.washingtonpost.com/wp-dyn/technology/ (last visited Jul. 25, 2000).

(69) Id.

(70) Id.

(71) Unlike computer software, which is being considered for protection under the patent laws, information goods may not be protected by patents, no matter what is written in the patent claim or whether they are technical or not.

(72) Tom Epperly, League for Programming Freedom-against Software Patents, at http:// lpf.ai.mit.edu/Patents/against-software-patents.html (last visited Apr. 18, 2002).

(73) Id.

(74) Richard Stallman, The Danger of Software Patents, speech at Cambridge University (on Mar. 25, 2002).

(75) Id

(76) Id.

(77) Donald F. Turner, The Patent System and Competitive Policy, 44 N.Y.U. L. REV. 450 (1969).

(78) Jason V. Morgan, Chaining Open Source Software: The Case Against Software Patents, at http:// www. lpf.ai.mit.edu/Patents/chaining-oss.html (last visited Apr. 16, 2002).

(79) Id.

(80) Workgroup, Regulation about the Invention Concept of the European Patent System and Its Interpretation With Special regard to Program for Computers, at http://swpat. ffii.org/analysis/ directive/ index.en.html (last visited Apr. 15, 2001).