Software patents for emerging tech since 2008

CategorySoftware Patents

First-hand insights into software patents in Europe and beyond

Are European blockchain innovators falling behind in the next IP arms race?


There is nothing more relaxing on a Sunday afternoon than browsing the EPO case law database. To my surprise though, there are no (as in absolutely 0) hits for “blockchain”, i.e. it is not mentioned in any board of appeal decision. Ok, blockchain is a relatively young technology (at least from a patent law perspective) and appeal cases take a couple of years. So I did some more research: Google...

Don’t rely only on the description for claim amendments


“Unsearched subject-matter” objections seem to be trending at the EPO these days. This means that a claim amendment taken from the description is not admitted by the examiner because the amended feature was not covered by the search for prior art. However, the EPO rules say that the search has to be done based on the claims, but with a view to the description and has to also cover features in the...

Don’t try to convince the primary examiner at an EPO oral hearing, go for the other two members instead


When your patent application faces an oral hearing at the end of the examination procedure, there is a subtle difference between the EPO and the GPTO: GPTO: the hearing is handled by a single examiner (the same who also handled the written procedure) EPO: the hearing is handled by a panel of three examiners (the primary examiner in charge of the written procedure and two further examiners) So if...

Distributed software systems: make sure you get your patent claims right


In times of the IoT, cloud and XaaS, most software products are geographically distributed, oftentimes even across countries. Make sure your software patent claims reflect this. Don’t mix up functionality of different entities in the same claim. If you do, your claim might never be directly infringed because no single infringer realizes all claim elements, or realizes some of the claim...

If you’re from the US, don’t neglect means-plus-function claims


Did you know that means-plus-function patent claims provide the broadest scope in Europe, because they are interpreted as covering anything that can perform the function? This is quite useful in software patents where it often does not make sense to limit the inventive functionality to a specific hardware implementation. The US is a completely different story though: There, means-plus-function...

It’s the non-obvious technical contribution!


I was talking about the first hurdle to software patentability in my previous post (technical character) and how it can be easily overcome. When it comes to software patents in Europe, the real challenge is the second hurdle: the non-obvious technical contribution. When a patent claim includes a mix of technical and non-technical features, only the technical features enter into the examination of...

Technical character, technical contribution… don’t get confused by the EPO lingo


I’m happy to see that my recent LinkedIn post on whether software is patent-eligible at the EPO got 1,200 views in two days! So let’s take a closer look at how the EPO deals with software patent inventions: The European Patent Convention (EPC) sets two hurdles on the way to a European patent: An absolute hurdle stating that the invention has to be an “invention” in the sense of Art...

Are your patents ready for the 3D printing revolution?


3D printing is one of the hottest topics in tech right now and will probably revolutionize the manufacturing sector as we know it today. But what if your patents only include claims for the end product and the classic manufacturing method? Someone offering a template file for 3D-printing the product will probably not infringe these claims. Have you ever considered something like: “A...

How to get your software patent allowed in Europe


*** This post is regularly updated. Last update: 5 September 2018 *** Does the European Patent Office grant software patent applications? The short answer is: Yes, but it depends on what the software actually does. On the other hand, “is software patentable?” is really the wrong question. Patents are granted for inventions, and it should only be a secondary question how the invention...

Caching security information of a smart card: technical but obvious


This examination appeal concerns a system for caching information retrieved from a hardware security token, i.e. a smart card or any other tamper-resistant hardware device used to store digital credentials, cryptographic keys or the like. Since it was not even questioned that this is technical subject-matter, the decision is quite straight-forward and “only” deals with inventive step. Software patents for emerging tech since 2008