Are Software Inventions Patentable?

The laws governing the patentability of computer programs vary from country to country and are often misquoted or misunderstood. This article considers whether computer programs can be patented in Europe.

In the UK, and most of the rest of the world, the lines of code in a computer program are protected by copyright. However, anyone wishing to copy the ideas and processes around an existing piece of software can write a new program with new lines of code that deliver a similar output. This can potentially enable the protection afforded by copyright to be circumvented because the actual existing code is not copied. Program developers have therefore turned to patents to try to protect the ideas and concepts behind the code.

One common misconception is that patent applications involving computer programs cannot be granted. This is not true. Patents are Intellectual Property (IP) rights that protect the technical functionality of a product or process. They have to be new and inventive over what is already in the public domain and are required to have industrial application. To be patentable, therefore, an invention must have a ‘technical effect’.

European patent applications involving new computer programs often do not satisfy the requirements for patentability because they lack an inventive ‘technical effect’. The mere running of a piece of software, that has no technical effect other than to make the computer hardware perform normal technical functions in the usual way, will not be patentable because the technical effect of standard computer processing is already known. Patent applications that involve new computer implemented method steps are therefore often found to lack ‘inventive step’ for this reason. Patent applications involving computer programs may be patentable where a further technical effect, over and above standard computer processing, is provided by the running of the program. The following are examples of inventions that provide further technical effects that may be patentable:

• A computer program for driving a machine for making a particular product, where the steps of the program make the manufacturing process more efficient than other known computer driven manufacturing methods.
• A computer program that makes a computer’s hard drive output data more efficiently than previously known.
• A computer program that compiles code faster than known compilers.

Determining whether or not a computer implemented invention has patentable subject matter is not always clear cut and the invention should be reviewed by a patent attorney experienced in this field. Therefore, if you wish the patentability of your software to be assessed, please contact us.

The US patent laws relating to the patentability of software are currently more liberal than the European laws, but are not covered in this article.