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 www.qrstuff.com , 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…!
Reference
Stobbs, G. A (2012). Software patents – Third Edition. Hoboken,
NJ: John Wiley & Sons.
