Thursday, June 5, 2014

Oh, patents! Patentability of the QR code

Copyright © Françoise Herrmann

Woohoo….Now that you have noticed the position code, at three apices, forming a right angle of the square QR codes that rock our daily lives…Consider the contending patent EP 0672994, and the manner in which the QR code invention is presented. The title of  contending patent EP 0672994 -  Method and apparatus for reading an optically two-dimensional code  discloses a method and apparatus for reading QR codes rather than the QR Code itself. And you may legitimately wonder: Why? Since, after all, the big invention concerns storage of 350 times more data than the prior art barcodes, and most importantly how to swiftly retrieve this information stored in a two dimensional manner. The optical reader is after all secondary to what it is that the code is doing, its readability, and to what it gives access. 

The answer to this question poses the issue of the patentability of software or machine readable code and the 50 year battle to obtain protection. Indeed, software lies at the intersection of two types of intellectual property laws, and at this intersection, protection in effect remains controversial. This is because software code is primarily written code, and in this mode of presentation falls within the provisions of Copyright Law. Consequently, following review by the National Commission on New Technologial Uses of Copyrighted Works (CONTU) created “to evaluate the adequacy of copyright law regarding computer based information systems and photocopying technology” (Stobbs, p. 27), Copyright Law was amended in 1976 to include software as “written instructions”.   

However, Copyright protection appears inadequate for protecting what software code does and its connection to artifacts. Copyright law protects the expression of ideas and not the ideas themselves. For example, a computer manual may be copyrighted but not the computer which falls under the jurisdiction of Patent Law. In contrast machine readable code, as instructions, is inseparable from what it does, and there are many different ways to achieve the same result (to instruct), all of which cannot be copyrighted to protect the invention, or what the code does.

If Copyright Law thus fails to adequately protect what software code does, then Patent law should be able to cover all of the software inventions in our lives, whether it is the code for word processing, xl sheets, air traffic systems, hotel reservation systems or expert querying systems that are able to match bacterial infections with the most effective antibiotic candidate, etc.. However, the provisions of Patent law exclude all forms of writing as a patentable.. be they poems, novels or computer program instructions, which under all other circumstances, enter the jurisdiction of Copyright Law.  Thus, software code, is also technically unpatentable according to the provisions of Patent Law, unless… there is a compromise in the interpretation of patent law.

Recognizing the need for software protection, especially once software became unbundled from large mainframe computers in the late 1960s, the compromise that was historically achieved in a court ruling began with the landmark 1981 Diamond v. Dierhr decision stating that the presence of software in an otherwise patentable invention could not make the invention unpatentable. In a roundabout way, this opened up the floodgates for code protection as long as it was part of some tangible device or support media.  And this is, in a nutshell, the reason why the QR Code was patented as method and apparatus for reading two-dimensional code vs. straight QR Code, which, in fact, is un-patentable and only copyrightable.


Woohoo.. download QRReader for Iphones and/or QR Reader for Android.
Woohoo… Scan the code to the right. It will take you to , where you can generate your own QR code!
Woohoo… Scan my blue QR code above and you will access my web pages!
Woohoo… have fun…!


Stobbs, G. A (2012). Software patents – Third Edition. Hoboken, NJ: John Wiley & Sons.  

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