The Software Invention Cube: A Classification Scheme for Software Inventions

Abstract

The patent system protects inventions. The requirement that a software invention should make ‘a technical contribution’ turns out to be untenable in practice and this raises the question, what constitutes an invention in the realm of software. The authors developed the Software Invention Cube (SWIC), a classification of software inventions and used this classification to explore the meaning of the notions ‘novelty’, ‘inventive step’ and ‘someone skilled in the art’ for software inventions. They came to the conclusion that no meaningful distinction can be made between software invention and software discovery, which is crucial in patent law. They also showed that only in very few cases copyright is an alternative for patents to protect software inventions. In their analysis they made a distinction between ‘software inventionism’ (the point of view that software inventions per se can exist and precede any patenting or any other form of protection) and the techno-political decisions that can be combined with it. The result is a framework that enables reasoning about the software inventions and their potential protection. Hence, the question of what constitutes a software invention and the desirability to protect such an invention in any way is completely decoupled. This paper is a sequel to the previous paper1 in which a proposal was formulated for an IPR-based software engineering life cycle and it was argued that only when an IPR-based software engineering life cycle is used a rational strategy towards software patenting, software patent licensing as well as IPR defense is possible. Further, an extensive discussion was given regarding the problem of so-called trivial patents. These seem to undermine the vitality and usefulness of the software patenting system. A number of examples of patents and patent applications that may be considered trivial were given. Long term strategies were discussed to remove trivial patents from the scene. Further, a research agenda consisting of a number of promising research questions concerning software patenting was worked out in significant detail and several policy recommendations were made.