How can Software be protected ?

Presentation

Intellectual property is a fundamental pillar of technological innovation; innovation no longer takes place only in traditional sectors such as automotive or chemical… but in the IT industry. It is natural that intellectual property continues to fulfil its secular mission and fully protect the technical inventions of the IT industry.

Software can be protected by copyright and by patent. These two titles are therefore complementary, with the copyright protecting the contents of the software and the patent the technical invention resulting from them. The software as a whole is often not patented. Only the technical invention resulting from the software may be covered by a patent. In other words, only the technical elements used by the software will be patented.

The CNCPI stresses that protection by patent of computer-implemented inventions is economically justifiable, especially as software engineering supports important costs of research and development, just as more traditional technologies do.

Patents enable protection of functionality and therefore, unlike copyright, allow efficient protection of the results of R&D. In an era when a large portion of the innovations of Western companies is based on services, and where their manufacturing is outsourced, it is particularly important to protect computer-implemented conceptual inventions at the European level.

Software may be defined in the following manner: an ensemble of programs designed to perform a specific process on a computer. The scope of software application is no longer limited to the sector of office automation and industry. It has become a technical tool used in the majority of activities, including those of everyday life. Not patenting would mean that we do not protect any technical innovation. 

In order to be patentable, an invention must meet several criteria, of which the most important are the following: 

• The invention must consist of patentable subject matter
• The invention must be capable of industrial application
• It must be new (novel)
• It must imply an inventive activity (not be obvious) 

Since patent law is applicable to inventions in all technical fields, without discrimination, to be patentable, software-related inventions must also meet these requirements. 

With regard to software patents, particular attention should be paid to the requirements concerning patentable subject matter and inventive activity.

Today, software patents are not delivered when the software is claimed alone, meaning without being associated with a system producing a technical result. In Europe, the European Patent Convention (EPC) expressly excludes "computer programs" per se. It is generally understood that inventions under the patent law should have a technical character.

A few examples:

Methods for controlling an industrial process, processing of data representing physical entities (temperature, size, shape etc.) and the internal functions of the computer itself are considered to have a technical character. 
A computer system used in the field of finance may have a technical character if the process is based on technical considerations relating to how a computer works (for example, improvement of security), rather than just on the consideration as to how the financial system works.
As a result, therefore, it is most likely that it will not be possible to obtain a patent for a software-related innovation that simply replaces existing technical and physical solutions with the same solutions using software and a computer, insofar as such a replacement would be obvious to "person skilled in the art" in the relevant technical field.
The CNCPI stresses that protection by patent of computer-implemented inventions is economically justifiable, especially as software engineering supports important costs of research and development, just as more traditional technologies do. 
Patents enable protection of functionality and therefore, unlike copyright, allow efficient protection of the results of R&D. In an era when a large portion of the innovations of Western companies is based on services, and where their manufacturing is outsourced, it is particularly important to protect computer-implemented conceptual inventions at the European level. 

The CNCPI wishes to point out that a patent is an essential legal tool, at the service of both major corporations and innovative SMEs. It enables SMEs, confronted with major companies, to maintain monopolies where they have innovated. The patent thus plays a major role in economic success and European competitiveness.

Questions and answers 

What is the definition of software patentability?

Software patentability extends far beyond the computer and information industry. The subject concerns intellectual property and therefore all business and our economy in general. Broadening of the scope of what is protectable, complementarity between intellectual property titles, the role of intellectual property in successive industrial revolutions… all these questions arise when reflecting on the patentability of software.
Many false ideas or misconceptions exist on these subjects. Several lobbies participate in this disinformation and further cloud the debate.
Given the impact of this question for our country and for Europe, it is essential today to identify what is at stake here and remember a few common sense truths.

How is intellectual property linked to software patentability?

Intellectual property has accompanied and fostered technological innovation for centuries. All the great inventions of the first and second industrial revolutions were developed thanks to the protection afforded by intellectual property. Today, innovation no longer takes place only in traditional sectors such as automotive or chemical… but in the IT industry. It is natural that intellectual property continues to fulfil its age-old mission and fully protect the technical inventions of the IT industry.

Why should French companies file software patents?

Companies must and can file software patents for three reasons:

• Their foreign competitors are already filing software patents in France and Europe, and are taking the lead. American and Asian companies have developed a very dynamic patent filing strategy. In the software field, as in the broader high-tech field, more than 50% of European patents are already held by non-European filers, and this trend is growing.
• European legislation accepts the patentability of most software. Software patents have been accepted in Europe for more than 20 years. Several tens of thousands of software patents have been issued by the European Patent Office, especially as a result of the convergence of IT and telecommunications. A patent may be delivered if the software is new, non-evident, and if it has a “technical character”.
• Patenting their software is in a company’s best economic and commercial interest. Filing a patent lets them take legal and commercial control of an invention, and to profit optimally from it. An intellectual property policy also extends to other possible rights (trademark, design, copyright), as well as to new ways of rights exploitation (such as “free software”, which is perfectly compatible with the patents system). The novice enterprise should begin by studying the patents held by its competitors. With the assistance of its French Patent and Trademark Attorney, it will learn how to integrate its IP policy into its global development strategy.

What does software patentability cover?

The software as a whole is often not patented. Only the technical invention resulting from the software may be covered by a patent. In other words, only the technical elements used by the software will be patented.