Patent on software

The protection of software is mainly governed by the legislation setting out copyright. However, can a computer programme also be patented, and why would you want to?

Software is protected by the Copyright Act in 99 out of 100 cases. The creation of copyright requires that the work “possesses its own original character and bears the creator’s personal stamp”. There must therefore be at least some degree of creativity.

However, copyright only protects the concrete form in which the work was created, but not the underlying functionality or accidental similarity, as long as the source code has not been copied one-to-one. There is thus a difference in the technical scope of protection. A patent protects a new technical effect and copyright does not.

Legislation and explanations

The Convention on the Grant of European Patents (European Patent Convention, EPC) has Article 52 EPC which lists what are patentable inventions. Article 52(2)(c) (compare also Article 2(2)(c) National Patent Act, ROW) 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.

From the jurisprudence of the Technical Boards of Appeal of the European Patent Office (EPO), it can be seen that computer programs are patentable as a product, as long as there is a technical effect achieved by the software. That is, an invention that would be patentable as hardware is also patentable as software.

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

The exclusion ground of Article 52(2)(c) EPC with regard to computer programmes thus seems to have been limited by the EPO, by creatively dealing with the limitation ‘as such’. However, whether this holds up will have to be determined in court proceedings.

Significance of software patents

The desirability of software patents is the subject of such debate that an attempt to enable software patents at European level has failed. Proponents point out that when software has a certain technical effect, a patent can provide protection against those who, with a minute change, make software that, however, has the same technical effect. Opponents point to the cost of patents giving free rein only to the big players and ‘patent trolls’, ultimately stifling innovation. Particularly in smartphones, the most trivial patents are filed.

If you want to know more about protecting your software, do not hesitate to contact our specialist and book an exploratory, no-obligation consultation.