Software patents are a critical issue in technology and economic development because many global economies are driven by computer technology. Software developers are naturally keen to protect and monetize their inventions by using software patents. But what are software patents? Can you actually get a software patent?
What are patents?
Patents are a form of intellectual property rights that are granted by the state. Usually, the patent holder has these rights for a limited time e.g. 20 years. The patent rights are granted in exchange for the public disclosure of the invention at a patent office. The World Intellectual Property Organisation (WIPO) define the general patent criteria for an invention to be:
- must be of patentable subject matter;
- the invention must be capable of industrial application and useful (depending on jurisdiction);
- it must be new;
- it must involve an inventive step; and
- meet the standards required for the patent applicable.
So, you may have come up with a software idea, design or invention and think that you need a software patent to protect your intellectual property. Most people are familiar with patents and think that they are the best tool for this job. But, a software patent may not be the right solution for your intellectual property asset. We have a set of key questions for you to work through to determine which intellectual protection best suits your needs.
1. Is your invention patentable?
The first thing you need to determine is if your invention is patentable. The WIPO general criteria can help you get an idea of whether it is or not. The criteria for patents are legally and technically complex. You will need the assistance of a patent specialist in order to register a patent and it is an expensive and time-consuming process.
2. Is your software invention patentable?
There is no global consensus on whether you can get a software patent. Many countries do not permit a software patent and software is explicitly excluded in patent legislation. However, some countries such as the United States do permit software patents in limited instances. The problem with this different treatment of a software patent is that patents are territorial in nature. Therefore, you would need to apply for a separate patent in each country in which you wanted to operate and some of those countries may not permit the registration of a software patent.
3. Is a software patent the right form of IP protection?
Software patent protection is limited by country, subsists for only 20 years, is expensive to register and enforce and is a complicated registration process. Is it really the right form of IP protection for you?
Copyright arises automatically on creation by the author of the work and protects the literal expression of the computer program.
Other forms of protection you can consider are registering the domain name of your organisation or trademark registration. A practical first step that you can take is to ensure that you have a Non Disclosure Agreement (NDA) in place. So when you discuss the idea with other people you get them to sign the NDA. This prohibits them from using your idea but allows you to engage in the practicalities associated with realising the idea into a viable business operation.
4. Do you need to protect your invention abroad?
If you do, then you need to consider that all patents are territorial and you would need to go through the lengthy, expensive application process in each country. That is provided that the laws of that country do no exclude registering a software patent. Also, a patent for country X is only enforceable in country X and does not stop your competitors using your patent in country Y.
5. What about hardware design?
Many IP laws struggle to accommodate software protection because they were drafted at a time before software was so significant. That is one of the reasons the law is uncertain on software patents and it can be difficult to protect software. A by-product of this approach is that there are several other protections available for hardware because it fits into the more traditional IP protections.
It may be easier to patent the hardware invention that goes with your software invention. You may also have industrial design protections available to you. Industrial design relates to the ornamental or aesthetic aspect of an object. It includes elements such as the dimension of the object (2D and 3D), the shape, patterns, lines and colours. The holder of the registered industrial design or ‘design patent’ can prevent third parties from commercially making, selling or importing objects that are a copy or substantial copy of the protected design.
Actions you can take
- Protect your ideas from the beginning by getting us to draft an NDA for you.
- Find out more about the right IP protection for your software or IT needs by consulting with us or asking us to draft an opinion for you.
- Secure your domain name by having us assist you if you are having a domain name dispute.
- Practically and effectively structure your organisation taking into account the software IP asset by consulting with us or having us draft your company documents
- Familiarise yourself with the different IP protections by attending one our workshops.