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Software Patent
of the year 2006

J. Henkel

Prof. Dr. Joachim Henkel comments the election of patent EP0836787 to be the "software patent of 2006":

"The purpose of the patent system is to provide incentives for innovations. In order to obtain these incentives, society accepts disadvantages resulting from the patent holder's exclusion rights. If an invention were made also without the prospects of obtaining patent protection, a patent on such an invention would solely have negative consequences. This would be the case if an invention is obvious. In order to exclude such cases patent law demands that a patentable invention must be "not obvious to a person skilled in the art" (Article 56, European Patent Convention).

This condition is not met if the invention can be deduced by simple analogy. For example, it is obvious for an expert to replicate the logic of electronic circuits by using software. Thus, for this type of "inventions" no patents should be granted. And for the same reason I also do not consider patent EP0836787 grantable since it merely applies a process common for landline networks to cellular networks.

The present patent arms-race may seem to be in the applicants' interest, but it is not. A stringent interpretation of patentability criteria would benefit everyone – not to mention the fundamental question if software should be patentable at all. The widespread assumption that more patents mean more innovations is wrong."

Prof. Joachim Henkel holds the Schöller Chair in Technology and Innovation Management at the TU München (Technical University Munich).

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