Software Systems and Intellectual Property Rights

The protection of intellectual property is a challange of the digital economy. The digital economy is, among others, characterized by strong positive network effects and instant scalability, i.e. an easy reproduction of digital content at virtually no costs.
Traditionally, innovators may employ copyright protection and patents to earn revenue on the commercial dissemination of that innovations. The economic rationale for patents is to protect potential innovators from unlicensed imitation because otherwise substantial disincentives to innovation are expected.
Recently the US-court has catagorized software as innovation thus enabling patent protection: But according to EU legislation (EPÜ (1973): article 52 paragraph 2 and 3), for computer software as such no patents can be issued. The reason is a lack of original invention. Recent jurisdiction in Germany (German BGH) and Europe shows a different picture, though. In fact, they acknowledge software programs for patent protection. Despite a lack of legislative foundation, this seems to be the mainstream approach in the USA as well as in Japan and most of Europe.
The question arises if software significantly differs from other kind of products and accordingly other intellectual property mechanisms are more suitable. Software is often considered different from traditional goods. Developments in the software area are characterized by very strong dynamics and short development times on the supply and on the demand side. The software industry features high sequentiality, complementary and the availability of open source code. Sequentiality means that each successive invention builds on the preceding one — in the way that Windows built on DOS. And complementary means that each potential innovator takes a somewhat different research line and thereby enhances the overall probability that an innovation is reached within a given time.
Accordingly, the main goal of this research project is an analysis of the implications of software patents on innovation dynamics and innovators’ incentives
We try to gain answers to the questions:
  • Do patents hamper innovations in the software industry or are they a necessary prerequisite?
  • Will introducing patents for software programs increase the pace of innovation or will the market remain basically unaffected?

  • We started this research project with the following symposium:

    "Softwarepatente - Motor oder Bremse der Wirtschaft"