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SAS ruling by EU Court of Justice on 2 May 2012

There is no ruling yet in ECJ case C-406/10, SAS Institute v. World Programing Ltd, and the case deals with an alleged copyright infringement, not a patent infringement, however, the ECJ's Advocates-General (the court's legal advisory body) has made interesting comments. The case was referred to the ECJ by the High Court of Justice of England and Wales.

Excerpts with implications for patents

57. 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.

Also applicable for patents?

The Advocates-General point out the dangers of allowing software ideas to be monopolised by "as such". (Note: this use of "as such" has no relation to the "as such" wording problems in the EU software patents directive.) The context is that a company tried to use their copyright as the basis for owning/monopolising an idea, so "as such" means "by copyright". So the question is: would the advocates general see the same problems if someone tried to do the same thing, but with a patent instead of copyright?

What would the differences be? The only big difference would be that the monopoly from a patent would be shorter - twenty years instead of fifty or seventy. But is twenty years "short" in software development? Obviously not. It's an eternity, very similar in effect to fifty or seventy years.

So, unless there are other elements of context which have to be looked at, it seems the Advocates-General would have the same negative opinion if presented a question of whether software patents should be accepted.

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