Emerging Challenges of Software Patenting

Frequently, inventors or software developers are concerned about their invention and whether or not they will be able to obtain legal protection (software patent) for it. But before we get into the topic of software and patents, it’s important to understand how patents and copyright work. Copyright refers to the rights granted to a creator’s work, such as a book or song. However, in the case of software, patents cover the ideas contained within the software or computer programme as well as the technical effect achieved. 

Most people believe that copyright is the only form of protection available to software innovations; however, as we will see later in this article, this is not the case. The issue of software patent protection is complicated, and the correct answer may differ from country to country. However, in this article, we will concentrate on relevant EU laws and countries under this jurisdiction. 

What Is a Software Patent? 

This refers to the patent protection provided for computer software. In this context, “software” can refer to anything from a standard software programme to a mobile app. 

To be eligible for this protection, software must meet certain criteria, which we will discuss in detail later in the article. 

Is it possible to patent a software? 

As previously stated, most people in the technology industry believe that because creations such as software innovations automatically have copyright protection, it is not necessary to file for patent protection. However, copyright is not comprehensive and does not confer the same legal rights as patents. 

The best bet is to consider both options as complementary. Copyright provides only anti-piracy protection. However, the creator must demonstrate a level of uniqueness or intellectual exertion that justifies the sought-after protection. 

This implies that the software developer must personalize his or her work. Otherwise, a copyright application will be rejected. 

Copyright vs Patent

When there is copyright protection, the holder can decide who can and cannot copy a particular piece of software code. Patents, on the other hand, broaden the scope of intellectual property protection because they are a different type of intellectual property with different capabilities. It concentrates on the technical aspect of the invention, such as the software in the case of software patents. 

But, Section 52 of the European Patent Convention makes clear that computer programmes are not patentable. However, where the execution of a programming code has a technical effect and serves as a solution to a technical problem, such an invention may be patentable. 

To successfully request patent protection, a software developer, programmer, or any other applicant must demonstrate that the solution provided in their work is unique and demonstrates inventive steps. In this context, an inventive step signifies that the novel feature in the software must be valuable and not trivial. 

The Answer

So, the answer is simple: innovators can patent their software inventions, but only if the software solves a technical problem. Because it is nearly impossible to separate technical computer operations from their standard functions, the question of what qualifies as a technical problem arises here. 

A mathematical solution, for example, may not be patentable. According to the European Patent Office Board of Appeal, other examples of technical solutions include improved control of robotic arm functions or improved radio signal reception. 

What Kinds of Software Are Patentable? 

To be eligible for patent protection, software must meet certain criteria, including being novel and solving an existing technical problem. 

In the United Kingdom, the types of software that can benefit from patent protection are divided into two categories: software related to computers and software related to physical objects. 

The former includes software such as user authentication, encryption, and other security-related software. It also discusses AI software, data speed, video and image processing, and other topics. 

The latter includes software for industrial machines, electric vehicles, handheld devices, and other devices. Although not exhaustive, the list includes items currently protected by patent through the EPO and the UK Intellectual Property Office. 

The United Kingdom takes a strict stance when it comes to software patent applications. Based on an old EPO judgement in a 2006 lawsuit involving Aerotel Ltd, Telco Holdings Ltd, and Macrossan’s Application, it performs a four-part test on each application to determine whether the software is patentable. 

This four-part test begins with interpreting the software patent claim, then determining whether the inventor made sufficient contributions and what these contributions are, assessing whether the contribution is valid, and determining whether it is technical enough to warrant the sought-after patent protection. 

The Emerging Challenges Associated with Software Patenting

1. The Patent Process’s Complexity

A software patent is a complex concept that will necessitate the expertise of a patent attorney. Adopting a do-it-yourself approach to writing a patent application may be less expensive in the short run, but it is likely to have unintended consequences in the long run, potentially resulting in no patent protection. 

An experienced patent attorney is familiar with the procedure and will assist the applicant in submitting a strong patent application and defending it if (and when) the need arises. 

One factor that complicates the patent application process is the difficulty in trying to describe software technology and innovations. This is because they involve abstract ideas, which make it difficult to understand and determine whether the invention should be protected by copyright.

2. Cost

The cost of filing a patent application may deter prospective applicants from proceeding. However, these costs can be attributed to the numerous factors that are included in a software patent application. 

For starters, a prior art search is necessary to ensure that no patent protection on the subject matter already exists. Law firms may charge up to €4000 to conduct a thorough search that identifies similar existing patents. 

Following the search, the attorney will usually offer legal advice on the degree of patent protection an applicant could indeed claim and whether filing the patent application is in the applicant’s best interests. 

Then there’s the matter of preparing the patent application, assuming that everything else is in order and the inventor decides to move forward with the application. The application process can cost several thousand euros, possibly even five figures. 

This is due to the fact that it involves drafting and filing fees, the cost of which varies depending on whether the software in question is simple or complex. Assume the applicant needs to revise the application at some point (particularly if the application is challenged). In that case, the patent application will be subject to additional fees. 

Furthermore, keep in mind that patents are national rights, which means that if patent protection is sought in multiple countries, a separate patent application must be filed in each of these countries. As a result, there will be additional costs for creating and filing this patent application per country.

3. The procedure is lengthy and uncertain.

The time it takes for a patent application to be scrutinized before approval can be lengthy, typically a few years. The software may have outlived its usefulness by the time the relevant agencies grant the patent. 

In the United States, for example, the Patent and Trademark Office may take up to four years to approve an application. It is obvious that there are no guarantees that the relevant authority will grant the application after such a long wait. If the patent application does not meet the requirements discussed earlier, no protection will be granted.

4. Software has a limited commercial life.

The world is changing quickly, and the demand for new technological innovations is increasing on a daily basis. As a result, software innovations that were relevant a few years ago are rapidly becoming obsolete as newer technologies meet the ever-increasing demands of modern life. 

Mechanical and pharmaceutical inventions, on the other hand, have a longer shelf life because their utility can last for decades, justifying the money and effort expended on obtaining patent protection for them. 

The short life of a software patent implies that only those who act quickly will benefit. Consider software that has a commercial shelf life of about 3 years and competitors that take an entire year or more to match the technology. In that case, only the very first mover will have that period of exclusivity. 

Conclusion 

In general, any unique invention that solves a technical problem is eligible for patent protection. However, because software is such a complicated field, there is some grey area. 

Therefore, in order for software to be patentable, it has to be a new invention with a distinct feature. Before potentially granting an application, patent examiners from relevant authorities look for uniqueness and other factors. Furthermore, the treatment of software patents may differ depending on the jurisdiction.