It is clear that software is being protected in Europe. Not only is software being protected, but business methods are routinely receiving patent protection. Protection is being given when the applicant succeeds in recasting the software invention as hardware device or hardware device control. Thus, for example, in the recent Aerotel appeal judgment in the UK, a business method described in hardware terms was viewed as protectable but another business method (Macrossan) couched in software terms was not. The argument I wish to put forward is that the current approach – which was originally set out in Vicom – has used a model of invention in computing which does not reflect how the software community views invention. Programs have been protected in the guise of ‘devices’ or ‘machines’ rather than as programs. This causes a mismatch between what should be protectable and what is protected and, to an extent, explains much of the opposition to software patents in Europe. If software was to be examined and protected as software, would the opposition be resolved? Perhaps, but to get that position there remain specific problems to be overcome which concern the nature and examination of software: this requires a radical approach to cope with a radical technology before opponents might agree
that the patent system serves the software marketplace.
