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Discuss critically the current international legal position on the patentability of software and business method inventions

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Preet L.
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  1. Introduction.
  2. The inherent problem of software patentability.
  3. Existing law.
  4. European directive.
  5. Latest developments.
    1. The contribution approach.
    2. The technical effect approach.
    3. The 'any hardware' approach.
  6. Conclusion.

The question of available protection for new products which are software is a complex issue. Under UK law, the Copyright Design and Patents Act 1988 (?the Act?), software is protected by the law of copyright. Although this is a powerful form of protection against an authorised copying of code, it may not be adequate to protect novel underlying ideas behind the software. For example, although copyright prevents competitors from taking the whole or a substantial part of the software code, it does not prevent a competitor from mimicking the novel concept behind the software system and taking these concepts to develop its own software .

[...] Telco Holdings[28] and others is considered to be the current UK authority on software patentability and is not in line with the recent decisions from the EPO. The case involved a patent for a telephone system whereby a caller had a prepaid account with a telephone company, which was rejected as a business method and the second patent involved a patent application for an automated method of acquiring documents necessary for incorporating a limited company, worked by asking the user a series of questions with the answers being routed to a database of previous answers to match documents. [...]


[...] Construe Widely and Face Invalidity- Construe Narrowly and Miss Infringment The Dilemma of interpreting Patent Specifications. Electronic Journal of Law Volume 11, No.3 Gregory A. Stobb., (2000) ?Software Patents? 1-46 Second Edition Robert Plotkin., (2004) ?Software Patentability and Practical Utility: What's the All UK case law reports available at www.lexisnexis.com ALL European law reports available at www.precedents.lawtel.com All UK legislation at www.opsigov.uk and ww.statutelaw.gov.uk All European Legislation available at www.europa.eu Websites www.patent.gov.uk www.epo.org See CDPA 1988. Section Patents Act 1977. [...]


[...] The inherent difficulty lies in the complexities of software and technology whereas the legislative measures and discussion to date has focused on the pressure from businesses to gain greater legal protection of software. This has led to jurisdictions trying to extend and interpret existing requirements for patentability without a meaningful debate on the complexities of software and technological advances. It is essential to research and consider the variants of what could constitute technical effect or practical utility from the outset. [...]

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