Software can still be patented as long as certain conditions are met
As more processes are automated, it has become increasingly important to some businesses to be able to patent software.
In return for disclosing an invention to the public, by way of publication of the application, patents provide a 20-year monopoly for the patent owner.
A patent can take up to four years to be granted in the UK, and up to seven by the European Patent Office (EPO). However, European and UK legislation excludes computer programs "as such" from patent protection, unlike the US.
A draft directive on the Patentability of Computer-Implemented Inventions was introduced in February 2002 by the European Commission (EC) to harmonise the approach of European courts to software patentability. While small software companies have argued that it would stifle innovation by allowing only the largest corporations to implement software, and drive them out of business when faced with claims of patent infringement, some large technology groups argued that the directive was too restrictive. and vague and confused in setting out what software can be patented.
Proponents countered that it would allow European companies to better compete with the US and Japan in the high tech global market.
The directive has been passed back and forth between the European Council and its Parliament without agreement for almost three years.
On 6 July, the parliament voted by 649 to 14 to reject the draft directive altogether. The EC had already made it clear that a rejection by the parliament would signal the end of its attempts to implement a software patent directive.
In practice, inventors need not be too alarmed. The failure of the directive simply represents a lost chance to provide a formal unified European approach to the patenting of computer software across the 25 member states.
However this will not prevent the patenting of software in Europe. The EPO has already granted more than 30,0000 software patents.
The draft directive merely sought to codify existing practice of national patent offices and the EPO in Munich, by allowing the protection of computer programs which make a technical contribution to the state of the art in the technical field concerned.
It is a common misapprehension that computer programs are not patentable at present in Europe. The Patent Act 1977, which gives effect to corresponding provisions of the European Patent Convention, grants patents for an invention which is:
- Not excluded subject matter (a computer program or business method "as such")
- Involves an inventive step
- Capable of industrial application.
Although the legislation means that computer programs are not patentable, the UK Patent Office and EPO allow the patenting of computer programs where their application has a technical effect which provides a "technical contribution" to the state of art.
This means that a computer program must be capable of bringing about, when run on a computer, a further technical effect beyond normal physical effects, and that this technical effect presents a technical contribution to existing technology.
As far back as 1987 an application by a company called Vicom established that a carefully-phrased patent claim can result in a software patent.
Vicom's application concerned a mathematical process embodied in a computer program that processed digitised images.
European patents have also been granted, for example: for a technology for selling goods over a network using a server, client and payment processor; an electronic shopping cart; a method of making payments using a credit card via the internet; and the jpeg digital image format.
Neville Cordell is a partner in the intellectual property group at DLA Piper Rudnick Gray Cary UK
Could you patent your software?
- Consider whether any of your company's software provides a "technical contribution" to the state of art
- Speak to the UK Patent Office, tel: 0845 9 500 505
- If you believe that your software may be patentable, seek legal advice immediately
- Do not disclose the invention to anyone before you complete a patent application, except on strict terms of confidence. Any non-confidential disclosure could prevent the patent being granted.