Intellectual property systems around the world today offer advantageous opportunities for valuing innovations in the ICT sector. The major developments in this field are often subject to patenting and licensing. Patent applications related to software have seen a constant growth rate over the last decade and represent the highest percentage among all technical areas submitted to the European Patent Office. Additionally, following the acquisition of substantial patent portfolios by industries in the ICT sector, the aspects related to inventions in this area have returned to the forefront of public attention. But what are the conditions for a software invention to be patentable?
Patentability Requirements
A patent is an intellectual property title that grants an exclusive right to produce, use, and sell an invention. It lasts for 20 years and can be granted if the invention meets specific requirements, including:
1. Novelty: To be patentable, an invention must be new, meaning it must not have been publicly disclosed in any form before the patent application date. This means the invention should not have been described in publications, presentations, conferences, or used before the patent application was filed.
2. Inventiveness: The invention must involve an inventive step, meaning it should not be obvious to a person skilled in the relevant technical field. This means the invention must provide a non-obvious solution to a technical problem.
3. Industrial Applicability: The invention must be capable of industrial application, meaning it should be possible to manufacture or use the invention in any industry, including agriculture. This criterion excludes inventions that cannot be practically realized or used in an industrial context from being patented.
These three requirements form the basis of the substantive examination to determine whether an invention can be patented according to intellectual property laws in many jurisdictions. What changes when we talk about software? Let’s explore.
Is Software Excluded from Patenting?
Software “as such” is excluded from patenting and is protected exclusively under copyright law, where software is considered a literary work, and the protection covers the expressive form in which the software is written, not its content.
Software is not excluded from patenting when it defines a technical solution to a technical problem, i.e., following the guidelines of the European Patent Convention, when we talk about “computer-implemented inventions,” emphasizing the technical effect resulting from the program’s execution, which must go beyond the normal program-computer interaction. This effect can manifest outside the PC, such as in technical process control systems, or internally, such as in data management in memory or hardware resource management.
Once the threshold of the software’s “technicality” is overcome, i.e., when the software is not excluded from patenting, the patent can be granted, like any other type of invention, if the requirements of novelty, inventiveness, and industrial applicability are met. In particular, after overcoming the first hurdle of accessibility to patent protection, the second and more complex hurdle is demonstrating the inventiveness of the invention.
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Software Patents: Complexity and Constraints
Many ideas in the software field risk being considered obvious because they are already implemented similarly by others, making it challenging to demonstrate the inventive step necessary to obtain a patent. Additionally, the software sector is characterized by rapid change and constant evolution, with new technologies and methodologies frequently emerging.
This dynamism makes it difficult for software patents to remain relevant in the long term, as innovations can become obsolete or outdated quickly. Moreover, the abstract and intangible nature of software can complicate the gathering of evidence of infringement and the identification of those involved in infringement.
Finally, the regulatory landscape for software patents varies from jurisdiction to jurisdiction, with some legislations applying the requirements more strictly than others. This regulatory heterogeneity can further complicate the process for software developers operating internationally.
The Value of Patents in the Software Field
Despite the complexities in obtaining a software patent, patents undoubtedly offer significant opportunities for companies in the ICT sector. As in any sector, a patent grants the holder the right to prohibit others from exploiting the invention.
This creates a significant competitive advantage, allowing companies to profit from their innovative processes without the risk of being copied by others. Additionally, the patent can increase the commercial value of the invention, making it more attractive to investors, potential buyers, or business partners. The protection provided by a patent can also encourage investment in research and development, enabling companies to monetize through licensing or selling patent rights or serve as a basis for negotiating licensing/partnership agreements with other companies. Patenting can also enhance the company’s reputation and credibility, demonstrating its commitment to innovation and intellectual property protection, which is particularly important in highly competitive sectors where differentiation and innovation are crucial for success.
Patenting Software: Pros & Cons
In conclusion, patenting software can be a complex and costly process with strict requirements to meet, but with invaluable benefits once obtained. These include increasing the commercial value of innovations, encouraging R&D investments, enabling licensing agreements, and enhancing corporate reputation and differentiation in competitive sectors.
It should be noted that the regulatory and legal landscape for software patents can vary from country to country, with some jurisdictions having more favorable regulations than others. Therefore, before embarking on the patenting process, it is advisable to consult intellectual property consultants to carefully evaluate the costs and benefits and make informed decisions about protection strategies.
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