Introduction

In the preceding chapter we looked in overview at how software had been viewed by the patent system prior to the IBM decisions (T 1173/97 and T 935/97) and noted that the system's emphasis upon integrating ‘computer-related inventions’ within the framework of a tangible, physical machine ignored the perspective which the programmer has of this new technology. This is not to say that there is one single programmer-centric perspective which we might simply persuade those in the patent system to adopt in their discussion of technology: far from it. However, we can paint a reasonably accurate picture of how programmers view their technology and note where there is a divergence between the technical and the legal.

The point of painting this picture is that it should allow us to mould our legal perspective upon a more truthful model of software than that of a ‘soft’ hardware device. Lawyers have – Shklar suggested – a legalistic view which encourages the belief that legal reasoning can meet and overcome the challenges set by all other disciplines: perhaps this is so, but there is anecdotal evidence that these other fields are not always persuaded of the power of purely legalistic approaches. In a research interview, one London IP lawyer rued the fact that she spent considerable time preparing cases for her IT clients only to find that, on their first appearance before the judge, the latter's lack of IT knowledge caused such anxiety in the parties that they quickly came to agreement or headed off to arbitration.