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Prof Tamai of Tokyo University shows how patenting of software clashes with some of the underlying assumptions of the patent system. The patent system relies on requirements such as concreteness and physical substance in order to keep the breadth of claims within reasonable limits. Software innovation however is the art of making processes as general as possible, i.e. the art of abstraction. Tamai quotes a set of patent claims from the SOFTIC symposium of 1993, where patent officials from JP, US and EU judged the patentability of an example algorithm at different levels of concretisation. The European representative was more willing than his colleagues from US and JP to grant patents on abstract claims, but even he shyed back from granting them at the level that really represents the innovative achievement. Tamai shows how this inconsistency leads to a series of other inconsistencies. Tamai sees only two ways out of the inconsistency: (1) acceptance of abstract claims (2) exclusion of software patents.
