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5 Common Misconceptions about “Software Patents”

Keltie LLP

K2 IP Limited

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code_invertedKeltie is part of London Technology Week which runs from 16 to 20 June. As part of this, IPcopy takes a look at a few of the most common misconceptions regarding software patents (or more accurately patents for computer-implemented inventions):

1) You can’t patent software

Probably the most widely-held misconception is that patents can’t be granted for software inventions in the UK/Europe. This probably stems from the letter of the law which states that a program for a computer is not patentable…”as such”. These two words have led to a long and complicated history of court cases in the UK and Europe regarding the patentability of computer-implemented inventions.

In short, however, if it can be demonstrated the the software solves a technical problem (such as reducing the memory required or improving the efficiency of the process) it is possible to get a patent granted in the UK and Europe.

2) Software patents are incompatible with open source

The owner of a patent can choose to publicly licence their patents and the code that enables the invention, for example as part of a GPL. As long as any patents are filed before the code is made open source, this disclosure should not affect the patentability of the invention.

3) The patent process is too slow to be useful for software

Whilst it’s true that a typical patent can take 4 to 5 years from filing to grant, there are ways of expediting the process. In the UK and Europe, this process can be accelerated, reducing the time to grant (the UK process in particular can be noticeably accelerated). Early publication of a patent application can also be requested. This extends the provisional protection (the period in which compensation can be back-dated to) provided by the pending application which can be acted on after the grant of the patent if the patent is infringed.

It’s also worth noting that one of the benefits in holding an earlier patent is that it can prevent others from using any improvements on top of it without a licence (even though they could apply for a patent for the improvement). So even if an invention is in a fast-moving field such as software, it can be useful to seek a patent if later developments may rely on an underlying aspect of the invention.

4) Code has to be written before applying for a software patent

One of the requirements for a patent to grant is that the specification provides sufficient detail for a ‘skilled person’ (e.g. a seasoned developer) to recreate the invention. So whilst a software invention doesn’t have to have been coded up before the patent is filed, the inventor needs to have a very complete idea of how the invention could be implemented in order to provide the level of detail required. In practice, this generally means that the inventor will have a working version of the software (or at least psuedocode) before applying for a patent.

This leads us onto…

5) Code has to be included in the patent specification

Even if the code has been written before filing a patent application, it is not required to form a sufficiently detailed disclosure. However, it could be useful to include it to demonstrate an example application of the invention. In general though it is fairly rare to include actual code in a patent specification.

 

If you have any questions about software patents, or the patent process in general, please leave a comment below or get in touch.

Laurence Lai 16 June 2014


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