There are no patents involved in the SAS Institute v. World Programing Ltd case, but there’s a very interesting statement from the European Court of Justice’s legal advisors, the Advocates-General:

To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

The context is that a company tried to claim ownership of certain software features via copyright, so “as such“, here, refers to the use of copyright. Now, if the same monopoly was sought through patents, the only difference would be that instead of lasting fifty or seventy years, it would last only twenty. Twenty years is an eternity in software development, so software problems that would exist under copyright-based monopolies would also exist under patent-based monopolies.

It seems likely then that the Advocates-General would also find patent-based software idea monopolies detrimental to technological progress and industrial development. Good to know we might have an ally there.

For more information, or to add your thoughts, see the ESP wiki:

Note: it’s unfortunate that the Advocates-General refer to monopolisation of an idea as “protection”. I’ve added some recommendations about words to the ESP wiki: Terminology recommendations. I’ll try to add more soon. Your ideas are welcome there too.

Categories: Case Law