Access to Knowledge: a guide for everyone Page: 40
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2. FAIRER LAWS AND ENFORCEMENT PRACTICES
but because the most efficient algorithms for font rendering are17 (or
were until this year)18 patent-encumbered. In fact so many patents for
computer software have been granted, particularly in the United States,
that developing an application without infringing software patents has
become a very hit and miss affair.
There are a number of high profile examples where the patenting of
a data exchange standard has forced another programming group to in-
troduce an alternative format. For instance, the PNG format was largely
introduced to avoid the GIF patent problems, and Ogg Vorbis to avoid
MP3. If it is discovered that these new suggested formats are themselves
covered by existing patents, the final result may be a large number of in-
compatible formats. Creating such formats and supporting them costs
money, creates inconvenience to users and even threatens to split the In-
ternet into several partially incompatible sub-networks.19
Patentability of software
The largest number of software patents are those registered in the United
States. Under United States law, it was decided in 199820 that a method
of doing business (or a software program) will be patentable so long as it
produces a useful, concrete and tangible result, rather than just being an
abstract idea. However in June 2010, the Bilsky v Kappos decision handed
down by the US Supreme Court rejected this broad test, whilst leaving the
exact scope for the patentability of software unclear. The test now being
used by US trademark examiners looks to whether the invention is tied to
a particular machine or apparatus, or transforms a particular article into
a different state or thing. Many if not most software inventions that could
be patented before, can probably still be patented under this test.
The European Patent Convention, a pre-EU instrument dating from
1974, actually expressly excludes "computer programs ... as such" from
the classes of patentable subject matter, on the ground that patents are
directed towards technical inventions, not commercial methods. Even
so, the European Patent Office (EPO) has managed to interpret the qual-
ifier "as such" in such a narrow way, that software patents would be
granted so long as they contained an inventive step with a "technical ef-
17 Paul, Ryan, First look: new Ubuntu font boosts Linux typography. 2010 (URL:
http: //arstechnica.com/open- source/news/2010/07/first- look- new- ubuntu-font-
18 See http://freetype.sourceforge.net/patents.html.
20 State Street Bank v Signature Financial Group, 149 E3d 1368, 1373
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Noronha, Frederick & Malcolm, Jeremy. Access to Knowledge: a guide for everyone, text, 2010; Kuala Lumpur, Malaysia. (https://digital.library.unt.edu/ark:/67531/metadc33297/m1/50/: accessed March 26, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; .