Software’s patent

Since its origins, the software industry has tried to find a solution to defend the ideas internally formulated, often involving considerable investments.

At first, it was thought of resorting to contractual agreements bounding employees and clients to secrecy, but soon it turned out that this kind of protection was totally insufficient, as an employee leaving a firm would take with him a significant knowledge that s/he could have possibly used in other ways.

For this reason, it was thought of using one of the two instruments known for protecting the intellectual works, the copyright and the patent; but it was chosen the first one as the program was seen, and still is, as a way of expressing the human mind, comparable almost to a written work.

Towards the seventies it was found that this instrument was unsuitable for the kind of desired protection as, if on the one hand it allowed protecting the expressive form of a program, on the other hand it did not guarantee any exclusivity on the basic idea that is the real value of the software.

Thus, it was thought to protect the software by a patent.

  1. The US experience
  2. When a patent is possible
  3. The difference between patent and copyright
  4. How to file a patent

1

 The US experience


During those years the American jurisprudence started opening the door to the software’s protection by means of a patent.

It was thought that the patent would have better guaranteed consumers since the exclusiveness right of characteristic the patent is recognized only after an examination of the novelty and inventive step, an examination that became, or at least should have become, more complex and elaborated during the years.

Ufficio Brevetti - software's patent

2

 When a patent is possible

At present, while all programs are protected by copyright, not all programs can be patented. Only those producing a technical effect, new, or not existing, and innovative can be patented.

The proposal for a directive, never approved, was correctly entitled Proposal of directive related to the patentability of computer-implemented inventions (COM (2002) 92 of 20.02.2002) because what could be patented was neither the software nor the source code, but the invention implemented by a computer program.

The definition of “technical effect” is not easy. La definizione di “effetto tecnico” non è facile. Generally, it is thought that it subsistes when a program allows to carry out a further function in comparison to the normal interraction with the machine.

This technical effect can be external, for instance if the execution of the program allows to the computer to control a machine, or internal if the program allows a different functioning of the computer itself and therefore an improvement of its functioning and its performance.

The protection offered by the software patent approaches to the algorithm.

From the Arabian “al-khuwarizmi”, in its turn from the Greek “arithmòs”,an algorithm is a general method of resolving a particular problem with a complete series of steps.
It can be represented by a series of phases to follow, written one after another.

With the algorithm the program is gained through a “codification” phase, this being the written form of the algorithm through a combination of instructions written in some program’s language specifying the steps to follow.

A flow chart represents the algorithm and it shows all the steps, it is a more efficient and less ambiguous description than the one in words. After the flowchart, the programmer writes the source code, which is the text written in a programmer’s language to be translated into an accessible file. The source code is then converted into an object code, which substantially is the translation of the program into machine language.

What is then patented is the principle at the base of the program, not its source code or object, which may not yet even have been created, regardless of the language used. In any case, the source code and the listing, even if existing, must not be deposited with the patent application because they can only be object of copyright.


The copyright secures programs such as a literary work, for the way it is written, therefore whenever another program is written carrying out the same function following the same steps, if it is written in a different way there is not a copyright infringement.

The patent, on the other hand, protects the software itself, as long as there is a technical effect, from the point of view of the logical sequence of the steps it takes, either expressed in a logical form or algorithm.

Since a method can be translated in different programs all different, obtaining a patent concerning the method offers a wider protection compared to having rights only on a source code. The lack of a clear regulation on it if on the one hand makes rather uncertain the protection of software patents, on the other it opens the way to abuses as showed by the sad phenomenon of the so-called “patents trolls”.[1]

Ufficio Brevetti - software's patent

4

 How to file a patent

A software patent is filed with the same method of a common patent therefore, we suggest you to have a look to the patent section of this web site.

Nevertheless, preparing the technical documents needed to file a software patent is a very complex operation since a wrong description or a wrong formulation of the claims could determine the impossibility to have the patent.

The patentability limit in the field of software is so fine that the writing of the text presents always great difficulties and risks.