Patents on software

The protection of software is mainly regulated by copyright legislation. However, can a computer programme also be patented, and why would you want to do that?

In 99 out of 100 cases, software is protected by the Copyright Act. For copyright to arise, the work must “possess its own original character and bear the personal stamp of the creator”. In other words, there must be some degree of creativity.

However, copyright only protects the concrete form in which the work is created, but not the underlying functionality or coincidental similarity, as long as the source code has not been copied one-to-one.

This means that there is a difference in the technical scope of the protection. A patent protects a new technical effect, whereas copyright does not.

Legislation and interpretation

The Convention on the Grant of European Patents (European Patent Convention, EPC) specifies in Article 52 EPC what constitutes a patentable invention. Article 52(2)(c) (see also Article 2(2)(c) of the United Kingdom Patents Act) excludes computer programs “as such” from patent protection. Does this block the possibility of patenting software? The wording “as such” seems to offer a way out.

Case law from the Technical Boards of Appeal of the European Patent Office (EPO) suggests that computer programmes can be patented as products, provided that the software achieves a technical effect. This means that an invention that could be patented as hardware can also be patented as software.

That technical effect must be more than the normal functioning of software on a computer. What then? Think of a computer programme that can achieve the same thing as new hardware. For example, the (interface of) the digital zoom on your smartphone.

The grounds for exclusion in Article 52(2)(c) EPC with regard to computer programmes thus appear to have been limited by the EPO through creative use of the restriction “as such”. However, whether this will stand up in court remains to be seen.

Significance of software patents

There is such heated debate about the desirability of software patents that attempts to make software patents possible at European level have failed. Proponents point out that when software has a certain technical effect, a patent can offer protection against people who make software with a minor change but which has the same technical effect. Opponents point to the cost of patents, which gives only the big players and “patent trolls” free rein, ultimately hindering innovation. The most trivial patents are applied for, particularly in the case of smartphones.

Frequently asked questions / FAQ about software patents

Why would you apply for a patent for software instead of just using copyright?

Although copyright arises automatically when software is created, it only protects the specific code. It does not protect the underlying idea, algorithm or technical operation. In a market where innovation revolves around smart processes and functional solutions, copyright often offers too little protection. A patent can protect that functional aspect, provided that the software product is technical in nature and generates a demonstrable technical effect.

How can legal knowledge help navigate complex questions surrounding software patents?

Legal knowledge is not a luxury when it comes to software patents, but a necessary condition for being able to ask the right questions in the first place. Seemingly brilliant software ideas are rejected by the patent office because they are insufficiently technical, while seemingly abstract concepts slip through the gate with the right framing. This requires more than just knowledge of the law. It requires strategic insight into the case law of the European Patent Office, a feel for technological substantiation and the ability to translate abstraction into technical effect. At Fruytier Lawyers in Business, we help clients do just that. We not only assess whether something can be patented, but above all whether it makes sense.

Would you like to know more about protecting your software, copyright, or intellectual property? Don’t hesitate to contact our specialist and book an exploratory, no-obligation consultation.