IP and Software: Facts and Myths

Many people in the computer software industry believe that the only protection that their products have is copyright. This is not correct. Other rights, patents in particular, exist that software developers should be aware of so that they can protect their own products, and avoid infringing the rights of others.

Patents for Software

There used to be a widespread belief that patents cannot be used to protect computer software, and that software developers need not be concerned about patents belonging to others. I think that most people developing software no know that this is not so. Many people involved in software development now know that patents can be relevant to their activities, both in protecting their own work, and restricting some of their freedom to develop applications. While many in the software industry do not like this, it is a fact of life for everyone involved in software development.

Patents are granted for inventions. If the invention happens to be implemented in software, this is not an automatic bar to patent protection. Every year, many hundreds, if not thousands of patents are granted for inventions which are contained entirely within software products.

The range of subject-matter for which patents can be obtained has changed frequently. After many years during which the scope of what could be patented steadily increased, the trend has been reversed of late. The European Patent Office and the UK Intellectual Property Office are now less willing to grant patents for inventions that are implemented in software than they were in the recent past. While the legal approach to deciding what is and what is not patentable differs significantly between the two offices, in fact, bar a few edge cases, they tend to reach much the same conclusion.

Patentable or not?

In Europe, it is often said that a patent can be obtained if the invention within the software does something new which is "technical". The problem is that the many court and European Patent Office cases that have discussed the need for an invention to be technical have never actually defined what "technical" actually means. What is clear is that it does not have the same meaning as it does in everyday use. Every case has to be looked at on it own merits. It is often apparent that an invention clearly is or is not technical. The problems arise from those inventions that are neither clearly one nor the other.

I am not going to try to offer an exact definition of what is or what is not patentable here, but there are some pointers to look out for.

A software product that automates normal business procedures is unlikely to be "technical". On the other hand, there are many software patents that relate to image processing, machine control, CAD/CAM, electronic market trading, text processing (in some special cases), networking, operation of computers, robotics, typesetting, database access, virus detection and data compression, amongst others.

Do not assume that there is nothing patentable only because you have used standard development tools and libraries. It is the innovation, not the implementation, that matters most.

In the USA, it was possible to obtain patent protection for a larger range of computer software than Europe, although this has now been significantly restricted such that there is not much difference between US and European practice. For instance, software that implements business methods was patentable in the past in the USA, it is no longer.

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