Does the European Patent Office grant a software patent application?
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’s only a secondary question how the invention is embodied (in software, in an integrated circuit, with bolts and rivets, …).
But what is a patentable invention then?
Let me explain:
The European Patent Office applies two rules to determine if something is patentable:
- It must have technical character. The EPO follows the “any hardware” approach, so any software passes this test if the claims are properly drafted. Blame your patent attorney if your patent application fails this hurdle.
- It must provide a non-obvious technical contribution. This is the really challenging test. When there is a mix of non-technical and technical features only the latter can make it.
Watch this 1-minute clip for a quick summary:
As you can see, the central question is:
Does the software patent provide a non-obvious technical contribution to the prior art?
If the innovation is really in the non-technical aspects, it is not patentable at the EPO.
Adding an instruction such as “do it on a computer” or “do it automatically” also does not help, because this is regularly considered obvious by the EPO.
What is patentable is a “technically clever” implementation of the innovation.
An example: Consider a piece of software which analyzes stock indexes and gives the user an indication about when to buy and sell his shares. The underlying algorithm is so sophisticated that it forcasts future movements of the stock market with an extremely high degree of accuracy.
Even though such an algorithm would be very helpful, a European software patent will not be granted because the real innovation lies in a non-technical field (essentially a business method).
If, however, the software implementation is particularly clever in that it solves a technical problem in a non-obvious manner, a software patent will be granted by the EPO.
An example: Think of an innovative database format which allows analyzing huge amounts of stock data with less processing operations, or a non-straightforward scheme of distributing the processing within a server farm that leads to improved performance.
What does that mean in practice?
Ask yourself these two questions to make a preliminary assessment of the patentability prospects of a software-related innovation:
1. Does the software provide a technical effect?
Note that the technical effect has to go beyond the mere automation provided by a computer and the self-evident physical processes happening within the computer when the software is executed.
Examples of technical effects are:
- Controlling the operation of a technical apparatus or a technical process
- Improving the internal functioning of the underlying computer
- Improving the efficiency, reliability, robustness, security, or compatibility of the software
- Saving processing resources, saving network bandwidth
- Improving the retrievability of data within huge data collections
2. Is the technical effect achieved in a clever way?
Imagine you would instruct a programmer to implement the software for your new invention:
- If the programmer’s answer is: “No problem, I’ll take framework <xy> and put everything into the cloud via API <yz>, it all fits perfectly together!” – this would rather not get you a European software patent, since the invention is obvious on the technical level.
- If the programmer’s answer is: “Wait a minute, this is not straightforward, I will have to think about how to implement that <efficiently, reliably, with high availability, securely, …>.” – there could indeed be material for a European software patent.
European software patent: The devil is in the details
We all have a pretty good gut feeling if something is “technical” or not. So use these two control questions to get a first feeling of the patentability of your software invention in Europe:
- Does it have a technical effect?
- Is the technical effect achieved in a clever way?
But as you can see, in the end it really gets down to what your software does and whether exactly this is considered “technical” at the EPO.
So in the end, the only thing that helps is a very good understanding of what the EPO Boards of Appeal have already decided in similar cases and what the patent examiners make out of this case law.
In many new technologies (e.g. AI) there even is not much case law around yet. So one has to convince the examiners with persuasive technical arguments only.
So what to do?
That’s why you need someone who understands your technology and who knows how the EPO examiners think and which case law they use.
You should definitely pick a European patent attorney who makes a living prosecuting software patents.
Any questions? Let me know.
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