Can Computer Programs Be Patented?
The answer to the question, “Can computer programs be patented?” depends on the specifics of the invention. For example, an insulin pump’s software may be patentable if it can improve accuracy of insulin delivery. The same goes for software that helps a connected car predict potential road accidents or detect driver drowsiness. A computer program that improves a connected car’s performance, or predicts if the driver is drowsy, may also be patented.
Patent applications for computer programs may be challenged if they lack an inventive step. Inventions in computer software are considered obvious if they are not novel and new. The standard for determining inventive step is based on the construction of the ‘person skilled in the art’ and ‘prior art base.’ Often, inventive steps will be found in processes that are completely foreign to the usual computer use. However, the doctrine of ‘analogous use’ makes it difficult to assess this in the case of migration of existing practices into the digital realm.
Moreover, computer software that improves images would be considered patentable by the EPO. Increasing the quality of digital images is inherently technical and the new mathematical algorithm used in such a program would give rise to something technical. Similarly, image enhancement software might be patentable if its algorithm is not obvious. However, the EPO’s analysis of the inventive step will be more complex and lengthy for software than it is for hardware.
In the United States, patentability of computer programs depends on a number of factors, one of which is the technical effect the program produces. This means that the computer program must produce further technical effects beyond the basic physical interactions in the machine. The ordinary physical effects of a program’s execution are not enough to qualify as an invention, as these results are not technically unique. As a result, it is essential to prove the technical character of a computer program.
Patentability of computer programs is an essential part of the process of obtaining IP protection for a computer program. It is important to note that computer programs can be used for a variety of purposes, including those in other areas. Because of this, they require IP protection. There are different positions in different countries regarding the patentability of computer programs, so it is vital to know the status of the claim in your own country and seek legal counsel before filing.
The obviousness inquiry is a fact-based inquiry that requires the examiner to determine whether a combination of prior art is so obvious that it would be trivial for a person of ordinary skill to come up with the same idea without reference. Hindsight is not permissible and the patent examiner must establish that the combination was obvious to the person with ordinary skill in the relevant art.
In order to obtain a patent for a computer program, it must be non-obvious to a person of ordinary skill in the art at the time of filing. New computer programs can automate processes. This means that non-obviousness can be a significant barrier to acquiring patent protection for these programs. However, patent practitioners can help you determine whether a computer program is truly non-obvious or simply is not.
In general, the federal government grants patents for useful and new inventions. Computer-related inventions may be eligible for patent protection. For example, software designed to optimize energy consumption or perform more complex calculations may be patentable. While each jurisdiction has slightly different requirements, a program’s feature and function must be unique and non-obvious. Software inventors should consider whether their program meets the patentability requirements in order to maximize the chances of patent protection.
Although a program’s functionality can be deemed non-obvious under European patent law, the program must have performed more than the routine activities of a normal person. It is not an ordinary computer program, but a new computer program that performs a unique task. The application of patent laws on software can be a lengthy and costly process. As a result, a patent may not be appropriate for every computer program.
The patent office grants patents for a variety of applications for software that uses a computer. Until recently, the U.S. Patent and Trademark Office had made a policy against patenting computer processes. Previously, a patent could only be granted for an invention that produces a result in combination with another non-obvious element. This policy has since been reversed.
The “improving computer functionality” rule may seem helpful to a layperson, but seasoned technologists realize its shortcomings. Moreover, the rule does not comport with the way computers work in today’s technologies. All software tends to improve the functionality of a computer, enabling computations that were previously impossible or required fewer resources. Its limitations should not prevent it from being patented.
Nevertheless, patenting software has always been a controversial topic. While there are cases where software can be patented, the First Amendment protections should prevent patenting it unless it is “usefully” or “commonly understood.”
Patenting computer programs for business innovation may be the solution to this conundrum. Business software innovations are those that provide a new function within an existing technological process. To qualify for a patent, you must first have an understanding of the entire system, both in a big picture and in more detail. The overarching vision of your innovation and the specific aspects of its operation must be clear. In order to be eligible for a patent, your business software must be a unique expression of the technological process, resulting in a new form of functionality.
The Commission’s proposal to reform patent law recognizes that a lack of empirical evidence underlies the Commission’s justification for the expanding scope of software patents. It calls for regular, in-depth monitoring of how software patents are impacting European business through the European Patent Observatory. It further asserts the need for a “true” community patent system. To address these concerns, the Commission’s proposed reform will require national patent offices to better inform developers about the benefits of a patent, including the ability to develop new software for a broad audience.
This ruling is not entirely surprising. While the Commission’s argument is compelling, it misstates the history of U.S. law concerning “program patent claims” and the fact that program claims were not explicitly allowed until 1995. The Commission’s argument is based on a simple economic theory: economic value must take precedence over technical contribution. The issue of quality was raised by the Framework case, but the State Street Bank decision removed any doubt.