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Software and Patents

Are computer programs patentable? The answer is a clear “yes and no.” Here is why – and how best to protect your software

The rumor that software cannot be protected by a patent is still going strong. Perhaps because there is a grain of truth in it: the source code itself is indeed not patentable.

Even so, the source code of a piece of software is protected automatically from the moment it is written, with no application and no fees – by copyright. This is because software counts as a literary work and therefore enjoys the same copyright protection as works of literature.  

But that also means that only the exact wording is protected, not the function or the effect of a program. If someone writes source code with different wording or in a different programming language, this is not a copyright infringement – even if the software performs the same function or achieves the same effect.

This is where a patent comes in: it can protect the function and the effect of a piece of software – provided the software meets the criteria for patentability. To do so, it has to clear at least two hurdles that apply to all inventions: it must be technical, and it must be inventive.

The first hurdle: technical character

Computer programs as such are explicitly excluded from patent protection by law. In legal terms they do not count as inventions but as abstract concepts without technical character – just like mathematical methods, business methods or rules for playing games. Those two words carry a lot of weight: the exclusion only applies as long as the program remains just that – a program as such.

In other words: if software is embedded in a technical environment and achieves a further technical effect that goes beyond the mere flow of electrical current inside the computer, the assessment changes. Controlling a vehicle’s anti-lock braking system, encrypting messages in a communications network and compressing video files are all examples of a further technical effect. A computer program on its own, by contrast, is a purely abstract concept – the mere idea of what the computer is supposed to do. That makes it non-technical, and therefore not patentable. 

Patentable

  • Pulse oximeter: a method that uses a computer program to mathematically evaluate the signals from sensors on the skin in order to determine the oxygen level in the blood. The evaluation of the sensor data by the software achieves a further technical effect.
  • Machine scheduling: a process for determining how machines are scheduled on a factory floor, using a mathematical method. Both the process and the method serve a technical purpose – and the process is patentable, provided it involves an inventive step over known solutions.

Not patentable

  • Dutch auction: a method for determining the winning bid in a reverse auction. The rules governing how the auction runs have no technical effect – this is a business method that merely happens to be executed by software.
  • Sales forecasting: a method for estimating the sales of a product at points of sale. The method and the market analysis algorithm serve a purely economic purpose – and are therefore not technical.

The second hurdle: inventive step

To be filed as a patent application, an invention must be new anywhere in the world and must involve an inventive step – in other words, it has to achieve something that is not obvious to a person skilled in the art.

To make sure your invention is new, it pays to run a search yourself before filing. If you would like a well-founded external assessment as well, you can order a Search and Written Opinion According to § 57a Patent Act from the Austrian Patent Office. The result is a search report summarizing the current prior art in the field of your invention – accompanied, on request, by a written opinion on patentability. 

Selbstrecherche PatenteRecherche und Gutachten nach §57a PatG

Our assessment carries weight

The Austrian Patent Office examines software inventions in the same way as the European Patent Office (EPO). Our assessment of whether your software clears both hurdles is therefore a solid basis for your decision before you embark on a costly international procedure. The examination practice of both offices is reviewed every year and adapted to technical developments – which guarantees a stable methodology and gives you legal certainty.

Tip: when filing a software invention, make sure to always put a method claim first. This is one of the most important formal decisions in the application procedure. 

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