Legal meaning

Merriam-Webster's Dictionary of Law [14] gives the following definition for invention:

1.

A device, process, or discovery under U.S. patent law that is new and useful, that reflects extraordinary creative ability or skill, and that makes a distinct and recognized contribution to and advancement of science.

2.

The act or process of creating such an invention.

Although the word invention has a colloquial meaning, in the context of the law it has been defined as an independent, technical notion. According to [12], the European Patent Treaty (Article 52) a patentable invention is characterized by three properties: novelty, inventive step, and industrial applicability. We give some brief excerpts from the European Patent Treaty to clarify these notions. EPT, Article 54 defines novelty as:

• An invention shall be considered to be new if it does not form part of the state of the art.

• The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.

EPT, Article 56 defines inventive step as:

• An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

EPT, Article 57 defines industrial applicability as:

• An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

In order to apply the above definitions to the area of software we will have to answer several questions:

• What is the ``state of the art'' in software?
• What is a person ``skilled in the art'' of software?
• What is a software invention?
• How can a software invention be compared with the state of the art?

We will come back to these questions in the following sections.