Can I patent software?


Cast aside what you may have heard from your friends or read on the internet – obtaining a patent for software is possible in Europe.

However, this is a specialist area, and obtaining a patent for these topics can be problematic without expert guidance.

Below is a rough guide to what may be, and what definitely isn’t, patentable in Europe.

What’s patentable?

To obtain a patent for software in Europe, it is crucial that your software produces a ‘technical effect’.

This technical effect can be something as simple as “increasing the speed or reliability of the computer”, “reducing memory usage requirements”, or “reducing bandwidth usage for data communications”.

In some European countries, such as the UK, it also often helps if your software interacts with technical components. For example, perhaps your software analyses audio which is recorded by a microphone, receives an input via a touch-screen, sends analysed data to an external server, or outputs to a display screen or printer.

If the software process produces a technical effect and interacts with technical components, your invention may be deemed to be ‘technical’.

What’s not patentable?

If your invention implements something that was historically done by humans, but automates in software then this is unlikely to be patentable.

If the only advantages of your invention lie in business advantages, for example your invention enables more accurate estimates of stock prices, then your invention is probably not patentable.

If the only advantages are in the field of presentation of information, for example your invention presents information in a clearer way for a user, then it is unlikely that what you have developed is patentable.

However, the key test is whether or not your invention provides a technical effect. Even if the main advantage is a business advantage that doesn’t mean your idea isn’t patentable. If there is a technical advantage to your invention then it is certainly worthwhile exploring whether or not your invention might be patentable.

I’ve heard it’s far easier to get software patents in the US than Europe…

Historically this was true, but it’s not so much the case now.

Across the world, patent law and the definition of what is and is not patentable is constantly evolving. Hence, just because you read that one of the big tech giants has a patent for some seemingly simple bit of software doesn’t give you a clear indication of whether your invention might be patentable now.

In the US there has been a relatively recent shift in the assessment of the patentability of software, which brings it pretty close to Europe and in some cases it is actually now harder to get protection for software patents in the US than in Europe.

Answer last updated: 17 Jan 2018