Is it possible to file a patent on a software ?

You have developed software that you consider revolutionary and you are wondering if it is possible to protect it with a patent? Here is an overview of the issues related to intellectual property rights and of applicable regulations in this area. 

NB: this article is based on French and European law, but similar rules can apply at an international level. 

What is the definition of software?

Legally, software can define as a set of computer programs enabling a computer system or a computer to perform specific tasks designated as software features. Software therefore differs from a computer program, which defines as as a set of instructions and operations to be executed by a computer.

What is a patent ?

Legally, a patent materializes an intellectual property right : it's a title delivered by public authorities (in France, the National Institute of Intellectual Property - INPI), granting a temporary monopoly (20 years) on an invention to the person who reveals it, gives a sufficient and complete description, and claims this monopoly. In the case of software, the patent protects the technical invention that results from it.

Note that the software source code can also be protected with copy right, which is a prerogative attributed to the author of an intellectual work, comprising a financial right (right to profit from the work), and a moral right 

Patent right and copyright can therefore be complementary to protect software. 

What is the interest of intellectual property for software ?

Intellectual property for software enables to take legal and commercial control of an invention and to benefit from exclusive rights on exploitation for 20 years. Conversely, to not protect an eligible software would give the possibility to competitors to commercialize the invention, which could represent significant losses for the inventor, given the efforts provided to develop the tool. 

Therefore, intellectual property rights are key to innovation and economic life, especially in the globalized context in which we live. However, easy grant of patents could have the effect of paralyzing the market, which is in a dynamic of permanent innovation. It is therefore essential for public authorities to find the right balance. 

What are the criteria to protect software ?

The criteria to determine software patentability are the same as for every invention : 

-the invention should relate to patentable subject matter ; 

-the invention must be capable of industrial application ;

-it must be new ; 

–it must involve inventive activity (it should not be obvious). 

How does this apply to software ?

In the current state of practice, patenting software is not simple, because patentability mainly relies on the inventive activity, which means that the invention must solve a technical issue, this technicality being not easy to define and prove. 

Software for which a patent application is submitted should therefore be non obvious, meaning that it shouldnot obviously arise from the technique for a person skilled in the art. 

It is therefore necessary to demonstrate that a technical problem can be resolved by a technical solution.

For instance, it has been considered that an application enabling orders to be placed on the stock market at very high speed solves a technical problem and is therefore patentable, as well as a method and the associated electronic device for monitoring an executable code, executable on a computer platform and detecting temporal anomalies.

On the other hand, software that would enable to replace existing technical or physical solutions with the same solutions on a computer would not solve a technical problem and would therefore not be patentable. 

It is therefore necessary to successfully demonstrate the innovative nature of software to pretend to a patent.