ALISTAIR HAMILTON INTELLECTUAL PROPERTY
PATENTS DESIGNS TRADE MARKS

This article is out of date. The scope for obtaining patents for software-related inventions has decreased somwhat recently. I will re-write the page as soon as I can.

Patents for Software

There is a widespread belief that patents cannot be used to protect computer software. This is not so. Patents are granted for inventions. If the invention happens to be implemented in software, this is no bar to patentability. Every year, many hundreds, if not thousands of patents are granted for inventions which are contained entirely within software products.

In Europe, the general approach is that a patent can be obtained if the software does something new which is "technical" in nature. There are many ways of achieving a new technical effect. Every case has to be looked at on it own merits. However, there are some pointers to look out for.

What is a Technical Effect?

The law on this point is far from straightforward.  However, it is rare (but not unknown) for patents to be granted for applications which merely automate normal business procedures.  On there other hand, there are many software patents that relate to image processing, machine control, CAD/CAM, text processing (in some special cases), networking, operation of computers, robotics, typesetting, database access, virus detection, data compression, to name just a few of many technologies. Furthermore, recent landmark cases in the European Patent Office have shown clearly that this field is going to expand significantly.

Do not assume that there is nothing patentable only because you have used standard development tools and libraries. It is the innovation, not the implementation, that matters.

The situation in the USA is that already it is possible to obtain patent protection for a large range of computer software and for business methods that are most usually carried out by software systems.

Consequences for the Developer.

What does this mean in practice? Patent considerations will increasingly become an integral part of the design cycle. Developers must be aware that new products might infringe other people's patents. You do not have to copy in order to infringe a patent, and ignorance is no excuse. Therefore, a patent search should at least be considered before embarking on a development project.

Developers should also consider protecting their own rights. A patent can provide very powerful protection to the working principles behind a piece of software, and can give a significant advantage in the market.

Above all, you must seek advice before you make your software, or the ideas behind it, public in any way.

The Official Line

Read the present statement on this aspect of patent law by the UK patent office by clicking here. The UK Patent Office document refers to some decisions of the European Patent Office that relate to patent applications made by IBM. You can read these two decisions by following these links T0935/97, T1173/97 to PDF files.  There has also been a consultancy exercise, and its results can be found here.  

Keep Watch!

It is possible to keep track of what your competitors are doing by monitoring their patent publications. Please ask for details.

Taking things further.

If you have any questions relating to this or any other aspect of patent law, please feel free to get in touch. I am always happy to offer an initial exploratory discussion with neither cost nor obligation.

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