Don’t rely on the copyright!

“Anything that isn’t patented can be copied.”

The innovations contained in software can – and should – be protected by patents.

Beat Weibel, head of Siemens’ patent department, speaks about the special concerns regarding software inventions in the field of patents as well as common misconceptions.

You have headed Siemens’ patent department since 2013. Can you briefly describe the work that you do?

Ideas get turned into innovations and then into competitive advantages. Without good quality patent protection, however, competitors can easily use the results and findings obtained with impunity, and we quickly lose these advantages. Our work therefore focuses on strengthening Siemens’ competitiveness by creating and managing our global portfolio of intellectual property rights. These include patents, trademark and name rights, designs, copyrights, and domain names. Our strategy is aimed at globally protecting the business success that the innovation gives us in an application. The best way to do this is through close proximity to the researchers, which is the key to establishing a patent portfolio that is known primarily for its high quality and not just its size.

Let’s talk about software. Siemens is, after all, one of the world’s top ten software companies. Software is the key to our innovations and is frequently responsible for the actual customer benefit. But it is often said that patents cannot protect software. Copyright should in fact be sufficient protection, isn’t that right?

That is a very common misconception! Anything that isn’t patented can be copied or imitated. A copyright protects the text written by an author. In the case of software, this text is the source or machine code written in the programming language. But the intellectual effort needed to solve a problem in a certain way comes before the code is written. This can be a new algorithm or a particularly efficient one, a new AI process, or the recording of a new parameter. But this function, which is where the software’s actual value lies, is not protected by copyright.

We cannot use copyright to prevent our competition from coming up with alternative program code that has the same innovative function. The only way to protect the function is with a patent. In other words, patents can protect the WHAT and HOW of a software function, while copyright protects only the software text or code. Combining these two mechanisms provides the most comprehensive protection.

It takes far less time to develop software than hardware. The trend is toward agile software development and rapid prototyping. Many people are under the impression that patents are useless because a computer program’s lifecycle is very short.

We should not totally reject this impression out of hand. But we are concerned with protecting innovative functions in software and not short-lived codes. A good software function lasts for multiple software generations, and an outstanding functionality can set products apart over a long period of time. We need to find these protection-worthy ideas and patent them.

Isn’t it difficult to prove violations of software patents? After all, a competitor’s software, even if it is stolen, is often in the form of well-hidden machine code that is integrated in the hardware. How can you tell that this code uses protected functions without also knowing the program code?

Many software-based functions are clearly visible. For example, to prove that a patent relating to a graphical user interface was violated, we don’t even need to have the program code. But even if we have to provide evidence that a program implements a patented function, there are ways to do this. The source code is fully accessible, and today analysis software can already track down correlations between software codes. In other words, it can automatically determine whether third-party software works in a way that is suspiciously similar to our protected function. The tools for analyzing software are also being constantly improved. We assume that any software can be retranslated, analyzed, and checked within a period of approximately twelve months.

Open source is the opposite of copyright. Even Siemens uses and creates open-source software. What is your take on this?

Both models have their benefits. We love open-source software, use it frequently, and help implement related projects. This type of software is an excellent choice when there is little competition or when, as part of an ecosystem, we want to explicitly invite others to work with our standards and methods. But we would like to prevent proprietary software, which has cost us a lot of time and money to develop, from becoming part of open-source software.

So is the challenge is to recognize in a timely fashion the functions that are so important that they should be protected by a patent as intellectual property?

That’s right. Time is the determining factor here. I always encourage our inventors and patent attorneys to work together at a very early stage of research and development activities, so that together we can employ the best protective mechanisms. It’s important for the inventors to bring us on board when they come up with something new for a project or combine older components in new ways.

Everyone needs to know this: Anything that isn’t patented can be copied.

Andreas Müller, February 2021

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