The position regarding obtaining patent protection for software can be complex and confusing. Providing a conclusive answer can be further complicated by the fact that different jurisdictions can take different (and evolving) approaches.
However, at Potter Clarkson, when it comes to tackling the question of how to patent software our start point is always that patent protection is most definitely available for certain types of software.
That said, it is still an area that needs to be carefully negotiated. Stephen Moore, a patent attorney in our specialist communications and software team, has answered some of the most frequently asked questions we receive about patent protection for software in Europe.
CAN SOFTWARE BE PATENTED?
Yes. Although, patent protection is excluded for computer programs as such, patents can be granted for software that makes a technical contribution over the state of the art.
WHAT IS A TECHNICAL CONTRIBUTION?
Although there is no strict definition of a technical contribution, examples of software that may provide a technical contribution include:
- Control of a technical process
- Error detection
- Improved measure of performance or characteristic
- Improved accuracy / results
- Faster / more efficient processing
- Control of the internal functioning or operation of a computer
- Determining specific remedial action that is required (maybe)
- In some circumstances, an improved user interface
If your software makes any of the above technical contributions and is new and non-obvious over what has been done or published before, then it may be patentable.
CAN SOFTWARE CODE BE COPYRIGHT PROTECTED?
Software inventions can be patent protected if they make a technical contribution (see above). Software code itself is automatically (in most jurisdictions (not USA)) protected by copyright. Patent protection is often a more desirable form of protection as it protects the functionality of the software whereas copyright protects the specific expression of the implementation.
CAN SOFTWARE BE PROTECTED BY ANY OTHER IP PROTECTION?
If your software will be difficult to protect with a patent, for example because it relates to a method of doing business, but still has considerable commercial value, you could protect it as a trade secret. Our SafeGuard IP product can help you identify, audit and protect trade secrets.
WHAT TYPE OF INTELLECTUAL PROPERTY IS BEST SUITED TO COMPUTER SOFTWARE?
Original software code automatically gives rise to copyright. If your software makes a technical contribution that is new and non-obvious over what has gone before it may be possible to obtain patent protection. If your software will be difficult to patent protect, but is nonetheless crucial to your business, you may wish to treat it as a trade secret. We would be happy to advise you on how best to protect your software innovations.
WHERE CAN I FIND OUT MORE ABOUT PATENTING AND PROTECTING SOFTWARE INNOVATION?
Check out our guide to software patents for more detailed information.