We are often asked about patent protection for software products. “Software patents” can be more difficult and expensive to obtain than patents for other types of invention, and indeed are often not obtainable at all.
It is important not to fall into the trap of spending thousands of pounds on an application which really has no chance of success, but equally patent protection should not be dismissed out-of-hand just because software is involved.
What is the law on software patents?
UK and European law specifies that the following things are not inventions:
- a discovery, scientific theory or mathematical method… as such;
- a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever… as such;
- a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer… as such;
- the presentation of information… as such.
How is inventive step assessed for software?
At the European Patent Office, the Examiner will first divide out any “non-technical” features from the claim. The non-technical features are often really “business aims” – the sort of functional advantages which are advertised to end users. The Examiner takes the list of non-technical features and uses it to derive a “requirements specification”. The question in relation to those features is then “would a skilled person (i.e. a competent but unimaginative programmer) be able to use his common general knowledge to meet the requirements specification?” If the answer is yes, then the claimed invention does not involve an inventive step.
Does the UK and European approach amount to the same thing?
This one is controversial. According to the European Boards of Appeal, the UK approach is “irreconcilable” with the European Patent Convention. There are differences between the UK and the EPO, and also between other EPC member states. Indeed, it might be said that the European Patent Convention would never have been agreed between thirty-eight countries if they all thought that it meant the same thing.
So is my invention patentable then?
What does all this talk of “technical features” and “actual contribution to the art” actually boil down to? Patentability of software is not a simple question, but here are some indicators you can use to determine whether or not you might have a case.
What are my other options?
Whether or not you apply for a patent, and whether or not you get one, you should be aware of other Intellectual Property rights which may apply.
Copyright subsists in the actual source code and object code in a computer program. This protects against copying of your program. However, copyright does not protect against copying the features to make a new program which does the same job.
Registered designs are occasionally useful, if you have a particularly distinctive screen displays or layout. Registered designs can also protect graphical symbols and can be a useful layer of protection on top of copyright in that respect.
A Registered Trade Mark protects the name(s), logo(s), or other marks which you use to identify the product as originating from you. A Registered Trade Mark can be used to prevent competitors from using the same name, or names which are confusingly similar.