Under European Patent law – and similarly under national law in many European countries – software (the source code) – can only be protected through copyright. This means that software ‘as such’ is specifically a subject matter area excluded from patent protection.
Instead, in order to protect innovations in programs and software, IP case law has evolved to allow ‘Computer implemented invention’ patents, often known as CIIs. This means that with CIIs we protect software and computer programming in such a way that your patent or IP Attorney manages to overcome the excluded subject matter problem/challenge.
Patent protection is desirable for many reasons and in the field of software it can be particularly so, as copyright alone is often felt to be inadequate protection for your source code. Copyright protection only covers infringements made by copying. An example of this limitation for software is that another programmer can simply switch the computer programming (language) of an existing source code so as to be able to execute the same steps but with a different language. This means the competitor does not use the original version (so cannot be considered to be making a copy) and often falls outside of the realms of copyright and the potential for copyright enforcement.
The good news is that day to day we protect CIIs with patents and patent applications and work-around the copyright limitation, successfully obtaining patent protection for your inventions in this field. The work-around involves describing in detail the collection of steps carried out by a computer processor or software and claiming that together these steps form a specific “method”. You have probably come across this described in the term “method claims”.
In addition to software being an excluded subject matter, methods of doing business, rules of playing a game and mathematical formulae (often those that would be involved in computer programming) are also excluded from patent protection. To benefit from the protection given to CIIs, patent examiners are looking for software to have a real world technical effect. It is important to show that your invention presents a technical solution to a technical problem and one that is not considered to be an obvious step or ‘next step’ in technology.
Patents for computer implementation inventions can indeed be difficult to obtain, but not impossible in all cases. It is important for inventors to work closely with a patent attorney experienced in these types of inventions. Close collaboration and sharing of information is key in helping your Attorney find a way through to the successful prosecution of your patent and to obtaining patent protection.
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