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Do software patents exist in my area

Software patents can "exist" in two ways. If a patent office approves a patent application, then one could say that that patent now exists. But, patent offices are not the authority on patents. National courts are the authority. Patent offices frequently approve invalid applications. The only person who can really say that a patent exists and is valid is a judge.


For example, the European Patent Office grants software patents. Courts in Germany have mostly rejected them, but courts in the UK have upheld some. This uncertainty reduces the problem: although there are 70,000 EPO granted software patents, the patent holders rarely go to court because they're afraid their patent will be invalidated.

This doesn't prevent the harm. Software patent holders in the EU can still threaten software developers, and they can demand sums of money. If the victim doesn't have enough money to defend themselves in court, then the patent holder might "win" and thus get money or market control even though their patent is probably invalid.

There is also the passive threat problem, where software developers will avoid adding certain functionality or compatibility because they have worries about software patents and investigating or resolving these worries is either impossible or too expensive.


In the USA, the patent office grants software patents and they have been upheld many times in lower courts, but the Supreme Court has never ruled on whether software is patentable. The closest it came to doing so was the Diamond v. Diehr decision in 1981.

In the brief for EndSoftwarePatents, Ben Klemens argued that it's a mistake to read Diamond v. Diehr as allowing software patents.[1]

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