Can software be patented?

November 17, 2011

I’ve heard that software can’t be patented is this true? No it’s not true but it is a common misconception. A software invention is just like any other invention, it needs to be new and involve an inventive step to be patented. Inventive step, for a software invention, may arise if the invention provides a technical contribution such as a technical solution to a technical problem.

But what does this mean in practice?

The straight-forward automation of a known process using a computer won’t be patentable. Nor will simple data handling using a computer, as no technical problem has been overcome. However, if software rather than dedicated hardware is used to carry out an inventive process, the inventive process and the software is patentable. Also software used to control other devices or to control a host device so that it is a better device may be patentable if new and inventive.

Can you give some examples?

The following have all recently been held to be patentable in the UK: an operating system that produces a better faster computer, a new enhanced call handling system enabled by software, and a golfer’s aid that uses software.

What about in other countries?

The approach taken by the UK Intellectual Property Office (UKIPO) and the European Patent Office (EPO) should be the same but aren’t. The EPO will often allow cases that the UKIPO will not, so we may sometimes advise that protection in the UK is best sought via the EPO. A World Trade Organisation agreement requires countries to provide patent protection for both processes and products, in all fields of technology. Therefore most countries allow software implemented inventions to be patented. For example, the US Supreme Court recently denied an appeal by the mighty Microsoft against an award of $290m in damages for infringing a small Canadian company's software patent.

How does all this potentially affect my business?

If you are innovating then you may be able to get patent protection. Please contact Paul Higgin for more details [email protected] or your usual contact at Swindell & Pearson Ltd.

Swindell & Pearson has been helping businesses and individuals protect and defend their ideas, innovations and brands for over 130 years. With its head office in Derby, the firm also has offices in Stoke, Wolverhampton, Stafford, Sheffield and Burton. To find out how Swindell & Pearson can help you with any intellectual property requirements please get in touch via [email protected] or by telephone on 01332 367 051.