Uneasy Fit: Software Patents and the Duty of Disclosure in Patent Law

Canadian Intellectual Property Review, Vol. 25, No. 2, p. 221, 2010

24 Pages Posted: 23 Sep 2010 Last revised: 17 May 2014

See all articles by Robert Tomkowicz

Robert Tomkowicz

Vancouver, British Columbia, Canada

Date Written: June 1, 2010

Abstract

This paper examines the duty of disclosure in patent law and discusses the potential insufficiency of disclosing a computer program’s functionality in patent applications for certain categories of software – applications working on closed platforms. In Canada, software patents are generally issued without disclosure of the software source code. Present examination of disclosure in software patent applications focuses solely on the ability of computer programmers to write software based on its functional description, which raises profound questions about sufficiency of disclosure in those applications.

The problem of insufficient disclosure in software patent applications poses serious questions about the validity of a number of software patents already granted and should be resolved without delay. This paper recommends broader examination of software patent applications by ensuring that the software’s disclosure is sufficient to replicate the software’s functionality in the environment in which it functions during patent monopoly. Such analysis will often lead to a conclusion requiring disclosure of the software source code in patent applications.

Keywords: software, patent, disclosure, open platform, closed platform, patent law, confidential information

JEL Classification: K12, O32, O33, O34

Suggested Citation

Tomkowicz, Robert, Uneasy Fit: Software Patents and the Duty of Disclosure in Patent Law (June 1, 2010). Canadian Intellectual Property Review, Vol. 25, No. 2, p. 221, 2010, Available at SSRN: https://ssrn.com/abstract=1681644

Robert Tomkowicz (Contact Author)

Vancouver, British Columbia, Canada

Vancouver, British Columbia
Canada

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