1. Can I protect software as a software patent?
Under the European Patent Convention and the German Patent Act, Software is excluded from patent protection. However, this regulation only applies to computer programs “as such”. Actually, there is quite a few software related inventions which have been granted patent protection, if they comply with certain requirements.
2. What is required for my software invention to be admitted as a software patent?
The requirements for the protection of software patents are slightly different at the GPTO and the EPO. However, the following principles are valid for both patent offices:
First of all, the main criterion to decide whether the subject-matter of a patent application may be considered as an invention is the presence of a “technical character”. A technical character is generally assumed if a computer program belongs to a technical device, e.g. if the software controls the technical device. Further, a technical character is usually assumed if a claimed method, a hardware component or a conventional computer is used, or if a claim relates to a conventional data disk and a program which is stored on it.
However, if such features were already considered to be sufficient for the required technical character, a dilemma would arise: contrary to the law all computer programs would be eligible for patent protection if they were claimed in connection with hardware features, like a computer or a memory device.
Therefore, besides said first criterion, a computer program also has to have a “further technical effect” to distinguish patentable programs from unpatentable programs. Thereby, the further technical effect is determined by the nature and purpose of the computer program. For instance, software for controlling a technical process or an apparatus may be seen to achieve such a further technical effect and are hence eligible for patent protection. Moreover, if the software delivers a technical contribution to a technical process in order to make this process faster, more reliable or more fail-safe, the invention also has a good chance to take the hurdle of inventive step. However, if computer program only carries out a sorting or displaying of data, or if a business process is just emulated by means of software, such type of software is not patentable for it does not provide a technical contribution to the state of the art.
In conclusion, programs that are used to control a technical application usually are considered technical. If they also solve a specific technical problem with technical means, they have a good chance to be admissible as a software patent.
Once the hurdle of the “technical character” is overcome, the patent office checks whether the other requirements of patentability, namely novelty and inventive step are fulfilled. Please note that during examination of inventive step only those features are considered which contribute to a technical solution for a technical problem. Non-technical features will normally be disregarded. I.e., a feature justifying the acknowledgment of an inventive step must serve for the technical solution of a technical problem.
Some examples of the European jurisprudence:
A technical means to solve a technical problem is to be assumed, where device components are modified or addressed differently.
A technical means has to be assumed where the flow and function of a software is determined by conditions external to a data processing system (BGHZ 185, 214, para. 27, “dynamic document generation”).
Our attorneys have special knowledge in many areas of software patents in Germany, Europe and the USA. We also have experience in patenting software patents in the United States.
If you have any questions, please do not hesitate to contact us. Just call one of our patent attorneys in Munich or write us an email. Our contact details can be found here.