To no avail. Software patents continue to be enforced by shadow companies in an effort to make money out of nothing. Something that could also impact European startups launching in the US.
What this means is that the vast majority of software developed in Europe is not patentable. There are, however, a few exceptions. If that same invention solves a technical problem it can indeed be patentable. Which, considering the situation in the US, is good news for most startups and tech companies in the EU. We are working towards a world where software does what software users want it to do. For this, software users must be able to participate in the development and distribution of the software.
Software patents block this goal by adding legal and financial risks to software development and distribution and by giving the patent holders legal power to completely prohibit software developers from using the patented ideas.
To understand how patents work, it is important to realise that they have almost nothing in common with copyright. While copyright is granted on the the work of an author, such as a computer program, patents are granted on ideas that could be used inside a computer program. So when thinking of patents, think of "symphony combining wind and string instruments" and not "Beethoven's 2nd symphony.
Software patents are a problem for everybody , no matter if big or small companies, individual software developers, users, non-free or Free Software. The European Patent Convention states that software is not patentable. But laws are always interpreted by courts, and in this case interpretations of the law differ.
We will continue to work with our sister organisations , our associated organisation FFII , and others to inform people about the dangers of software patents. We will explain the legislative that they have to make the laws more precise so that the patent offices have to act as intended. We will continue to get rid of that problem. Often, it will not be clear whether patent protection will be available at the EPO for an invention relating to software.
In such cases, we recommend you get in touch with your usual Mewburn contact for some case-specific guidance. Once the EPO has accepted that a claimed software invention is patentable, i. In November , the EPO issued guidelines providing example claim formulations for computer-implemented inventions, which should not face formal e.
The full EPO guidelines can be found on the EPO website via the link set out in the footnotes to this information sheet [4]. The EPO guidelines expressly indicate that the example claim formulations that have been provided by the EPO are non-exhaustive, so there is no formal requirement to prepare claims that exactly match these examples.
Nonetheless, we think the EPO guidelines provide a useful reference that may assist in the preparation of claims for protecting software inventions at the EPO. By way of example, a new and non-obvious financial method e.
This is because the EPO will simply view the underlying financial method as a method of doing business which is inherently unpatentable. In contrast, an automated system for performing a financial method that involves moving financial data from A to B could potentially be patentable at the EPO if it uses a new and non-obvious hardware arrangement that allows the financial data information to be moved more quickly from A to B.
Here, the automated system could potentially be viewed as patentable because the new and non-obvious hardware arrangement is clearly a technical feature, and the increase in speed results from the hardware arrangement itself rather than the financial method being performed by the automated system. Ultimately, if an invention really does reside in a new and non-obvious way of doing business, rather than in a new and non-obvious technological development made in the context of a business process, it will be extremely difficult, if not impossible, to obtain patent protection for that invention at the EPO.
In these cases, we recommend you get in touch with your usual Mewburn contact for some case-specific guidance. Statutory law in the UK regarding the patentability of software and business method inventions is essentially the same as it is in Europe. However, unlike the EPO, the UKIPO applies this law in practice by assessing whether a claimed invention relates to non-patentable subject matter independently from its assessment of whether the claimed invention is obvious [6].
In theory, the approach of the UKIPO concerning the patentability of software and business method inventions should produce the same result as the approach of the EPO, and the UK courts have indicated that both approaches ought to produce the same result [8].
The unfortunate effect of this is that the prospects of getting granted patents for software inventions at the UKIPO appear to be considerably worse than at the EPO [9]. In the s, following some decisions of the US Court of Appeal for the Federal Circuit CAFC , most notably the well-known State Street [10] decision, the US courts and USPTO adopted a very liberal approach to what could be patented, such that it was generally possible to gain patent protection for most new ideas in the fields of business methods and software.
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