In the UK and Europe there are certain types of inventions which are excluded from being patented. This includes computer programs “as such”. However, it is possible to patent computer-implemented inventions provided that your invention provides a “technical contribution”. You cannot simply file the software code; we will work with you to draft your patent application describing your invention considering the actual technical contribution the computer program makes. The software code will itself be protected by copyright.
It is possible to protect a computer program as a method, i.e. the steps or instructions that are carried out by the program and also as an apparatus, for example, the device to carry out the method or the instructions as stored on a carrier medium. Inventions that are purely methods of doing business, presentation of information or mathematical methods are also excluded from patentability in the UK and Europe. It is not possible to patent software with a technical contribution falling within these categories. For example, if your computer-implemented invention provides better temperature regulation for a washing machine it is likely to be patentable. If your invention provides an improved financial system, it is unlikely to be patentable.
We need to consider whether your invention includes something that “goes beyond” the software. If your invention simply carries out a standard process that a computer is used for, such as data manipulation, then it is unlikely to be patentable. Finding the algorithm to enable a piece of software to carry out a particular procedure is not patentable. If your invention provides a technical contribution to a technical problem, either external to or within the computer, then it is potentially patentable. It is possible that the improvement offered by your invention is a better programmed computer and it does not have to cause a physical effect in the “real world”.
The exclusions to computer-implemented inventions apply to both European and UK patent applications. In assessing patentability, a UK Examiner will look to understand what the program does as a matter of practical reality and the UKIPO look for signposts to decide whether there is a relevant technical effect. In practice, the assessment of the software exclusion is applied slightly different by the EPO, with the EPO considering the software exclusion alongside inventive step and the UKIPO assessing the software exclusion separately from inventive step.
The exclusions to patentability also differ between other national patent offices. For example, the USPTO approach to patenting of software has recently changed requiring the improvement of the invention to not be considered excluded as a natural phenomenon/law or an abstract idea to be eligible for a patent. We work closely with our US associates to recommend the best approach to patenting of software inventions in the US. Please give us a call if you would like us to review your computer-implemented invention and consider the best strategy for seeking patent protection.