Patenting of Software

Copyright protects both the source code and the machine code (object code). However, copyright protection cannot normally be claimed for the underlying technical functionality of the software. The functionality (algorithm) of the software should be protected, if allowed by the patent law, by a patent (see Inventions and patents). A patent grants the right to prohibit a third party from producing, using, marketing or importing software that features the same functions or that uses the same process as the patented software, even if the code is entirely different.

The term "software" is considered to be ambiguous, because it may refer to a program listing written in a programming language to implement an algorithm, but also to binary code loaded in a computer-based apparatus, and it may also encompass the accompanying documentation. So in place of this ambiguous term the concept of a computer-implemented invention has been introduced by the European Patent Office to refer to the “patentable software”.

A computer-implemented invention is one which involves the use of a computer, computer network or other programmable apparatus, where one or more features are realized wholly or partly by means of a computer program.

In order to be patentable the software (computer-implemented invention) must fulfil the same prerequisites as any other invention. Its features must be new and inventive.

Moreover, according to the European legal tradition, an invention must be a technical creation. The subject-matter (computer-implemented invention) for which protection is sought must therefore have a "technical character" or, to be more precise, involve a "technical teaching", i.e. instruction, addressed to a technically skilled person as to how to solve a particular technical problem using particular technical means. The problem solved by the invention must thus be technical, in contrast for example to a purely financial, commercial or mathematical one. This must be satisfied in order for the invention not to be excluded from patentability.

Therefore, inventions having a technical character that are or may be implemented by a computer program are not excluded from patentability.