Technology is becoming a very sought after and expensive commodity whether it involves technology procurement or protection. Technology is made up in large part of software and traditionally the main way to protect software, in Europe at least, was through the intellectual property right of copyright but not patents. A software, or as it is referred for patenting purposes, a computer implemented invention is an invention that works by using a computer, a computer network or other programmable apparatus. To qualify for patent protection, the invention also needs to have one or more features which are realised wholly or partly by means of a computer program.

To be protected by patents, computer implemented inventions including software must have the following requirements:

§  They have technical character and solve a technical problem.

§  They are new.

§  They involve an inventive technical contribution to the prior art.

With this definition as a basis, the patenting process is very restrictive as it puts emphasis on new technical contributions or solutions. Consequently computer programs, which do not solve a technical problem, are not patentable in Europe.

In this respect, the granting practice of the European Patent Office differs significantly from that of the United States Patent and Trademark Office, where patent protection for software is granted, even if it does not solve a technical problem.

Why are such programs not patentable in Europe?

The European Patent Office does not grant patents for computer programs or computer-implemented business methods that make no technical contribution. Programs for computers “as such” are excluded from patentability. This means that a program for a computer is not patentable if it does not have the potential to cause a "further technical effect" which must go beyond the inherent technical interactions between hardware and software.

On the other hand, a computer implemented invention (even in the form of a computer program) that can provide this further technical effect can be patentable, subject to the other patentability requirements, such as novelty and inventive step. In this case, it would be recognised as providing a technical solution to a technical problem. In other words, inventions that use computer programs to provide a business process - not a technical process - are not patentable.

Here are some real-life cases.

A patent application for an Internet auction system was not granted because the system used conventional computer technology and computer networks - which meant it made no inventive technical contribution to the level of existing technology. Such a system may provide business advancement to its users, but that is not the type of advancement required by the European Patent Office.

The problem of improving signal strengths between mobile phones is a technical problem, even if it is solved by modifications to the phone software rather than its hardware. Such an invention would obtain a patent, provided that the solution is also novel and inventive.

All articles are for general purposes and guidance only and do not constitute legal or professional advice.

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