Patent Protection Of Software And Hardware: Technical, Social, And Legal Aspects

Patent Protection of Software and Hardware - What is it? - Jurisdiction - Examples of law suits (e.g. http://www.cnet.com/au/news/apple-vsamsung-patent-trial-recap-how-it-all-turned-out-faq/).

Research this topic and write a report analysing the technical, social, legal aspects. For each topic your report will need to identify problems (or crimes) that may occur then recommend actions that can be taken to prevent the problem from occurring, identify the problem has occurred, what steps can be taken to remedy the problem, and  what actions can be taken towards the perpetrators of the problem. Reference original laws (e.g. common law) or court cases. Provide all references (Journals, web links, etc). Where possible, identify all laws applicable in each region (Australian-Pacific, Europe, America, and Asia).

Patent Protection of Hardware

From the early days of the internet, it is rapidly advanced our technology towards IoT (Internet of Things) enabled appliances and home where AI (artificial Intelligence) could also be integrated in the future. It has been left far behind the idea of semiconductor, which was the primary component of most, the embedded system and have moved on to more sophisticated and complex hardware structure which has also resulted in shifting the major focus from these hardware to the software component. It can be seen that due to wide array of scope and implementation ideas of these technology be it in Smartphone sector or other software as well as hardware, many companies have been established to hop on the enormous opportunity that these sectors provide.

Brian and McNamara (2007) stated that physical devices perform in an improved method over the previously recognized devices that can be patented.  The components of a computer such as hard disks, keyboards and monitors with upgraded framework are able to patent. For an instance,  a hard disk has upgraded format or design of data that results in increasing data storage as well as fast accessing that can be patented.

Apart from the different computer and tech related IP, the major focus of our report will be based of specifically patent protection of Software as well as hardware around the world. The present patent laws that came into effect in the 60s to 80s were the need of the hour for many tech companies around the world to protect their product from wrongful infringement (Trappey et al. 2017). This allowed the company to have a patent in their name that would restrict the rival from using them without giving financial gains to the patent companies if that was written in their patent clause. This also enabled the companies to demand capital from the rival firm if they used the product.

In addition, this has resulted in a very competitive environment throughout the world among the various multinational tech companies that are always eager to invest in the ideas that could enable them to overtake their business rivals (Bhargava, Reese and McAfee 2015). Many do succeed in doing so, but the vast amount of companies that is there also means that even if there is such an innovative idea floating around the space, it would not take the rival firm to make a copy of it and use it for their self financial gains (Raichstein et al. 2017).  This is where the idea of patent laws and protection comes in which enable these tech companies to stop the rival firm to make a replica of their innovation and use them as one of their own.

Patent Protection of Software

The patent protection act of hardware was much less complex and sophisticated than the software one (Kaluzhny et al. 2018). The hardware  need to pass through few test that different from country to country and are properly analyzed by the expert if there is a possibility of any availability of these hardware. Then they are patented and are the protected under the various Intellectual property rights of different countries. The hardware component can be patented in any country without much hassle as the uniqueness in most of the cases is visible to the public, apart from these, the underlying embedded design could also be understood to give more protection to the hardware from any infringement (Stevens et al. 2015). These laws do safeguard the interest of the individual owners or Multinational companies. Hence, it is important to take appropriate actions regarding the process and mitigate the barriers that obstacles to get potential results.

The patent protection on this hardware also serves these companies a great deal in terms of gaining royalty of their product from other similar companies that might have liked the hardware and wanted to use and integrate these hardware in their product. For example, OLED technology that is widely been seen as the best Television quality has been patented by the Eastman Kodak Co. where Ching W Tang along with Steven Van Slyke were the principal inventors. This OLED hardware component is seen in most of the high-end TVs in today's world (Trollope et al. 2015). They receive their royalty by various companies that uses their hardware technology in their product. On the other hand, it is important to focus on the patent protection of software involved with the system.

In Australia, the patent laws allow multiple set of software in order to gain patent protection. Innovations of software need to be helpful in industry. For an instance, a procedure of solving a particular mathematical question utilizing software is not patentable.  The software codes are not patentable. However, it is copyrightable.

There is a lot of controversy involved involving the patent of software all around the world. The reason for this is the wide range of acceptability norms that is considered while analyzing the patent protection in case of software (Cox and Red Hat Inc 2016). The algorithm of any software is very difficult to be patented through various IP laws around the world.  There is also a scenarios in which most of the patent protection is done by the giant Multinational companies to continue their dominance and financial hierarchy over the small IT companies (Kumar et al. 2017). This is done widely to stop other smaller enterprises to continue on their software, even when many times it has been analyzed that these are mere idea that might not be fully developed.

Apple vs Samsung

This patent protection provides the investor confidence in the companies to invest in the startups (Lee et al. 2018). The patent system was established so that the owner of the product or software could continue doing the research without having to worry about the infringement of his/her ideas and product.

The patent case between the top phone companies in the world began in the year 2011  in which there was a ruling of the case in favor of Apple of $1 Billion. This case was because of much number of designs of the iOS and various utility patents filed by Apple and Samsung. These included many different functions of the Smartphone such as home screen grid, tap to "zoom". These allegation most of which was found to be true by the jury and Samsung was notified to pay the above stated amount to Apple (Pearce 2018). Later, down many years when rehearing of the case was filed by Samsung, the compensation amount came down to $539, which could be seen as a loss to Apple. The bulk of the matter is that, even after fighting for over half a decade, both of the companies cared less about the money that was involved in the matter rather was more inclined toward their reputation (Saha et al. 2016). There was another utility patent battle that was again filed by Apple on its feature of "slide to unlock". This case was also seen as a loss to Samsung that had to pay $120 Million to Apple for wrongful violation. There were also many other lawsuit that was filed by both these companies internationally which through mutual understanding was dropped in the year 2014.

It can be clearly analyzed by the example of these two giant tech companies that this patent protection does serve a purpose and can be used very efficiently by various companies around the world to protect their patent and also issue an unwritten warning to its rivals against any wrongful infringement (Durham et al. 2016). The criticism of these companies can also alter their investors and shareholder, which can have a serious impact on the company financially.

In Australia, there are two types of patents such as:

1. Standard patent
2. Innovation patent

An invention is provided in long-term protection as well as control by the standard patent. It takes nearly 20 years from the date of starting.  The claimed invention needs to be brand new and requires fertile step as well as able to be generated or utilized in the industry.  The steps of inventive steps need to be different from the existed technology. The standard patent needs to meet the administrative demands. However, IP Australia recommends the process of getting help from professional aspect in order to apply for patent.

The most underlying important dimension of patent is that is does encourage technical innovation in many ways. There are mainly four steps that are involved in any technology innovation, invention, RD&D to developing the product based on the market and the final being market or commercial diffusion. Then there is concern over the ownership rights of this technology that is always an issue the future scope of the invented technology is seen as profitable to other firm, they could try to copy the tech for their personal gain.

This is protected under the IPR that can give not only ownership rights to a company but can also be made use of by individual innovator (Kumar et al. 2016). This IPR can give exclusive right to its inventor which not only gives personal satisfaction to contribute to the technological advancement of the world, it also brings many willing investors to the table to invest on the technology so that it could capture the commercial space of the respective sector. These patent protections are usually done along the research and development (R&D) stage of the technology, which is sometime done to encourage more and more investor to invest in the technology. Therefore, there is a wide range of technical innovation that could be sought if the product gets patent protection. Furthermore, technical aspect of the patent is significant to analyze in the sector research and development sector. Analysis of the aspects would be helpful to obtain potential advantages. In a short market life, the innovation patent is considered as the best option for patent protection (United Nations 2007). Thus, the place of invention will be replaced through a newer invention  that is useful and computer-based creations for development of IT industry.

Many times, there have been cases round the world in which the patent protection has been seen as a catalyst for any ongoing development in the society. This is because of the blockade it provides to its owner to protect their product from any anti-social or profit seeking entity. This patent protection system can be considered as an adjunct with respect to the market and its sector.  Patent protection provides startups to carry their product in the local as well as international without facing any issues of its authenticity if it has a patent for the various products (Troyansky et al. 2015). There is also no discrimination that is faced with any patent product even in the international market that makes them unique in their own ways.

Jurisdiction is defined as the official authority for making legal decisions and judgments. The information flow rises concerns across the world in order to enforce as well as protect intellectual property rights that consist patents, trademarks as well as copyrights (Australian Government 2006).

The patent laws around the world are governed through the IP laws respective to that country. These laws encourage and empower innovator to use this in order to secure a patent in hardware as well as a software that they deem to be fit to be secured from outside involvement with its core technology (Kumar et  al. 2017). From many decades, the legal system in the US as well as Australia has made the tech industry more competent and innovative through its use of various Intellectual Property rights. There are many processes in successful application of patent in the hardware as well as the software industry. 

The product is first categorized from the different type of patent that are available according to the core technology i.e hardware or software, utility patent or design patent, after which the concerned authority will have to confirm if that product has been patent to any other entity locally as well as in the foreign countries to avoid any future dispute. This stage is also important in various aspect, it becomes clear in the successful completion of the product that the given hardware or software is authentic (Gossler et al. 2018). After this, the company or individual applies for the patent in their respective countries that are mostly done through law firms in Australia and US.

Conclusion

Hence, here is a different aspect of patent system that should also be analyzed for proper understanding of the subject. Many times it has been seen that the big companies use the patent protect for blocking technological innovation in that sector by the medium or small companies. There are certain loopholes in the IP laws in many countries that are used by these bigger companies to their advantage. It is important to understand various aspect and implication of the patent protection laws and the reason it has become so instrumental in the innovation of various path breaking and evolving technology.

References

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Brian J. McNamara 2007, Patent and Copyright Protection for Computer Hardware and Software, Foley & Lardner LLP, viewed 15 August 2018

Cox, A., Red Hat Inc, 2016. Rights management system. U.S. Patent 9,286,445.

Durham, D.M., Sahita, R.L. and Dewan, P., Intel Corp, 2016. Hardware enforced memory access permissions. U.S. Patent 9,286,245.

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Kaluzhny, U. and Tasher, N., Winbond Electronics Corp, 2018. Bus protection with improved key entropy. U.S. Patent Application 10/037,441.

Kumar, S., Hughes, C.J., Kundu, P. and Nguyen, A., 2017. Hybrid hardware and software implementation of transactional memory access. U.S. Patent Application 15/299,452.

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Pearce, J., 2018. Sponsored Libre Research Agreements to Create Free and Open Source Software and Hardware. Inventions, 3(3), p.44.

Raichstein, E., Smith, J.P., Tevis, G.J., Van Hise, D.G. and Oren, W.O.L.F., International Business Machines Corp, 2017. Automated and self-adjusting data protection driven by business and data activity events. U.S. Patent 9,632,875.

Saha, B., Adl-Tabatabai, A.R. and Jacobson, Q.A., Intel Corp, 2016. Handling precompiled binaries in a hardware accelerated software transactional memory system. U.S. Patent 9,304,769.

Stevens, J., Absolute Software Corp, 2015. Offline data delete with false trigger protection. U.S. Patent 9,154,499.

Trappey, A.J., Trappey, C.V., Govindarajan, U.H., Chuang, A.C. and Sun, J.J., 2017. A review of essential standards and patent landscapes for the Internet of Things: A key enabler for Industry 4.0. Advanced Engineering Informatics, 33, pp.208-229.

Trollope, R., Cidambi, C., Adam, L. and Dickson, C.L., Symantec Corp, 2015. Techniques for providing protection against unsafe links on a social networking website. U.S. Patent 8,949,981.

Troyansky, L., Bruckner, S. and Hubbard, D.L., Websense Inc, 2015. Method and system for protection against information stealing software. U.S. Patent 9,015,842.

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