Patent on a software invention?
Only an invention having a technical character can be protected by a patent.
However, for business methods and inventions based on software or integration of hardware or an algorithm, the question is not easy whether patent protection is possible.
Is a software invention patentable?
The relevant patent offices and courts have arguments for and against the patentability of software and algorithms:
The argument against patentability: It is merely a purely abstract idea.
The argument for patentability: The invention has a technical character because it is based on technical knowledge.
Patent on a software invention? Examination by the patent offices
In principle, the first step of examination is based on the technical character. The patent offices consider the teaching of the invention as a whole. An invention may therefore consist of non-technical and technical elements. This is almost always the case with software inventions.
The decisive factor is not whether or how many non-technical elements or features are contained in the invention. Rather, decisive is whether the patent application presents a concrete teaching for action that is technical. Thus, even if the effect or result of an invention is non-technical, the invention can still be considered patentable - if technical teaching is presented.
This also applies to the following situation: although the use of a machine (such as a computer) may be useful or expedient for carrying out the invention, this invention may nevertheless be excluded from patent protection. The decisive factor for patentability is whether the teaching of the act is technical.
How to check whether a software invention is patentable?
In principle, every software invention should be checked to see whether it is patentable. The following questions can provide a first self-assessment:
- Does the invention solve a technical problem?
- Is a technical effect triggered?
- Are there technical considerations and features?
Moreover, it is a question of good wording of the patent application whether the patent is granted on a software invention and whether it claims a good scope of protection. We recommend the professional assistance of experienced patent attorneys. The - often suggested - alternative protection under copyright is lower than patent protection.
Software patent: inventive step
As with any patent application, an application for the protection of a software invention is examined not only for technicality but also for novelty and inventive steps. In examination practice, only purely technical features or technical uses are included for the assessment of inventive steps, but not the non-technical elements. However, non-technical features may also be considered technical, in particular, if they serve to solve a technical problem.
This has consequences for the wording of a patent application for software inventions. The inventive novelty of the invention must lie in the technical features and be cleverly formulated and located there.
Most software inventions may be patentable, and this should always be preferred to copyright protection. Decisive is, on the one hand, the technical teaching and, on the other hand, the clever wording of the technical features. This applies to German patents as well as to European patents.
We are a patent law firm with excellent expertise in computer-implemented inventions. If you have any questions, want support for your patent application, or check the protectability, please contact us by phone at +49 (0)69 69 59 60-0 or firstname.lastname@example.org.