Can Computer Software Be Patented?

Whether software can be patented is a question that has long divided the patent world. In this article, we will explore the Legal test, the extent of “obviousness,” and the Requirements for obtaining a patent. You may also want to know how software is categorized and marketed. Then you can decide whether or not a patent would be appropriate for your product. Ultimately, the decision will depend on how much of the software you plan to patent.

Legal test

The Alice decision, which pronounced software patents void in most cases, has raised new questions about the eligibility of computer software. The decision set forth a new legal test for patent eligibility: an invention must be useful in improving a computer’s function. But the test for patent eligibility of computer software remains in flux, and a patent application that meets all the other requirements may still fail. Here are some of the key questions that need to be addressed in a patent application.

The form-function test, which has been in place since the 1960s, is a more reliable test of patentability. The form-function test should focus on function and eliminate ambiguity in computer software patenting. By pointing out approximate levels of form and function, the test is proposed to be applied along with other patentability requirements. In the case of computer software, the form-function test should allow patents for inventions with high function and low form.

The MPEP test, which is often used to decide whether a computer program is patentable, requires hardware changes to function properly. This test requires that a computer program have a tangible, usable, or concrete result. The test has been unclear since the courts have not been able to agree on a clear and lucid standard. For the most part, though, the MPEP test will be used. In the meantime, software patents will remain a difficult path to navigate.

Historically, the US has been much more lenient on computer software patents than at the EPO. Despite its stricter standards, however, software patenting practices have been much more generous than at the EPO. However, the US and the EPO have not consistently applied this test, and the EPO often makes an effort to distinguish between non-technical and technical inventions. A more recent case from a US court has raised these questions.

Another major difference between these two legal tests is the emphasis on function versus form in the Diehr decision. The Gottschalk court gave more weight to the latter than the former. Neither test relied on both, while the Parker case looked at the latter. However, the Diehr case gave more weight to function, citing the mathematical method exception. Furthermore, the court explicitly stated that a computer program must produce a useful result.

Extent of “obviousness”

The term “obvious” in patent law reflects the general idea of what the inventor of the claimed invention would have expected the user of the software to do. It is a relatively recent legal concept and, as a result, the concept of obviousness is often contested in patent cases. The concept of obviousness, however, can be expanded to cover more than one aspect of an invention.


While the European Patent Convention excludes programs for computers from patentability, computer software programs are generally not regarded as “inventions” under the EPC 1973. Thus, computer software patent applications are examined more closely by the European Patent Office. While there is no universal definition of a software program, the following criteria are commonly used to determine its patentability. As an example, a computer program should have a technical effect that is beyond “the usual” interactions with the environment.

To be patented, a computer program must solve a challenging computing problem in an innovative way. However, it must focus on its technical underpinnings. Software that does not have such components, such as algorithms or design patterns, is unlikely to be patented. However, in some cases, software can be patentable if it breaks down an algorithm into its component steps and explains how each step helps solve a real-world problem.

The WTO has established a set of principles regarding patentability of computer software. In general, computer software inventions must be “new and inventive,” involve an inventive step, and be suitable for industrial application. The TRIPS agreement also prohibits discrimination in patenting computer software. Further, the TRIPS agreement does not address the dispute resolution procedure for software patents. Therefore, software patents are subject to interpretation.

The patentability of computer software depends on whether it can be broken down into an identifiable process. For example, if a program is able to perform a particular task, it falls into the “process” category. Software can’t be patented on its own, but can be patented as a set of steps. The abstract idea itself is not patentable, so it needs additional elements in order to become patent-eligible.

While computer software is relatively new and has only recently been protected by the Patent Office, it is one of the most argued about areas of technology. The term “Patent” itself has a long history. It originated as an open letter, and the word “Patent” originally referred to documents that were issued under the Great Seal of the King of England and conferred rights to individual citizens. As a result, computer software is relatively new, and if it is patentable, it may be the next big thing to come out of the scientific community.

Requirements for getting a patent

In order to get a patent for computer software, the invention must be new, observable, and not merely a scheme. In other words, the patent examiner is looking for an interaction between the software and the computer that is novel and not simply a copy of an existing system. If the software enables the creation of physical phenomena, it should be clearly described in the patent application.

A qualified lawyer is vital in helping a patent applicant with the process. This is especially true for the drafting of the patent application, as the content of claims cannot be changed once the application is filed. The claims must be drafted properly and can only be amended if they do not describe something that already exists. Working with an attorney can help reduce the chances of the patent being rejected. However, hiring a lawyer is not a cheap way to protect your software.

There are many steps involved in preparing a patent application for computer software. First, you must define what your invention is and describe it in detail. In some cases, it is necessary to include the method of the software, such as the process of generating a computerised user interface. Additionally, the software must not create an artificial physical effect or state. If your software works as intended, you should have no problem getting a patent for it.

The description of the invention is a key factor in determining whether it qualifies for a patent. If your invention involves a technique or method that involves an inordinate amount of computing resources, it may be abstract. In order to avoid this classification, you should focus on specific computing technologies. Regardless of your invention, make sure you make sure your application is written correctly and carefully. A poorly written patent application will not be able to protect your software.

The patent process is quite different than that for hardware or other products. Software patents require more R&D and development than other technology fields. Advanced medical diagnostic tools, surgical robots, and energy efficiency systems require years to develop. While a software patent isn’t as valuable, it grants substantial IP protection to mathematics. By contrast, the copyright and trade secrets system protect software to a greater extent than any other type of technology.