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PONS IP dispels the greatest myths about software patentability
PONS IP dispels the greatest myths about software patentability

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PONS IP, a global consulting firm specialised in Industrial and Intellectual Property, held the meeting “Software Ownership: The challenge of protecting New Technologies” at the PONS Foundation headquarters together with more than 150 attendees. The aim of this meeting was to shed light on the different ways of protecting software, as well as to dispel myths about limitations on industrial property and software. It also focused on sharing experiences and multiple challenges that both developers and companies face when addressing their protection in a critical sector with regard to its importance for a digital economy based on intangible assets like the current one. Today, this reality is demonstrated by the fact that more than 50% of R&D carried out worldwide is based on software and, according to the latest report published by the European Patent Office (EPO),close to half of the patents applied for (49.5%) and 43.5% of Chinese patents in 2022 are already related to the field of software.

The meeting, led and moderated by the consulting firm’s Strategic Advisor, Luis Ignacio Vicente, included experts in the field of industrial and intellectual property consulting, such as Violeta Arnaiz, Director of the TMT, Intellectual Property and Software Area; Ana Herrera, Director of Patents, Technological Development and Innovation; and Eric Maciá as attorney and consultant in ICT & IP and Secrets of the Innovation and Technological Development Area. These three experts presented the different scenarios and strategies to address the complex issue of protecting software from a comprehensive perspective. With regards to protecting software-based innovations, they all agreed on the need to have a holistic view that addresses at least three dimensions: the protection of software per se, the protection of inventions related to the software as a patent, and the protection of this knowledge, if applicable, as a trade secret.

Luis Ignacio Vicente, Strategic Advisor of PONS IP, pointed out that “thanks to industrial and intellectual property, we have the opportunity to promote a relevant aspect of software-based R&D that we do not currently consider, but we have to dispel three myths. It is said that making software is not R&D, but today the fight against cancer is possible due to artificial intelligence software. Software is said to be unpatentable; however, this year more than half of the patents filed with the European Patent Office will be related to computer software. It is also said that in areas such as entrepreneurship ecosystems industrial property is a matter for attorneys, when in fact it is, for example, a strategic instrument that allows the value of start-ups to be determined.” We have to incorporate industrial and intellectual property management into our business plans, because it will always be profitable”, he concluded.

Moreover, Violeta Arnaiz Director of the TMT, Intellectual Property and Software Area, highlighted that “if we refer to computer code itself, the main reference is intellectual property legislation, which grants exclusive rights over a computer program to the authors of the same. Therefore, there is no doubt that based on these rights it is possible to exercise control over the code -source and object- of software (to authorise or prohibit its use, grant licences to third parties, exploit it in any way, decide to publish the code or not, etc.). Problems arise when, due to the large number of people involved in software development -through contributions of different types and under different circumstances- or due to the use of previous materials -pre-existing code or code from libraries- it becomes difficult to correctly trace the chain of rights and, therefore, accredit the ownership of software created or commissioned. In this sense, specialised advice is key to ensure the success of the protection and avoid future problems “.

For her part, Ana Herrera Director of Patents, Technological Development and Innovation, pointed out that “as we mentioned, at the beginning we experience a notable increase in the number of patent applications related to software inventions. It is essential that developers have specialised advice to help them design patent protection strategies that are suitable to their market and their needs, as well as to draft and defend these patents, taking into account the particularities that this type of invention must comply with in order to successfully become a sound patent”.

Finally, Eric Maciá, , from the point of view of technological innovation and development, emphasised that “in the case of confidential information, and as a complement to previous measures, companies are turning to protecting software as a business secret. This makes it possible to protect key elements of software-based innovation that go beyond the code and associated documentation and the technical effects achieved through its use: data, models, methodologies, embedded business processes, architectures, etc. The key to optimising software protection is to start with a list of valuable assets linked to the software and, from there, begin to examine the possible aspects that may compromise confidentiality and design appropriate measures to maintain control and confidentiality of secret information while also guaranteeing the correct exploitation of the assets”.

The day ended with a round table discussion, moderated by the Strategic Advisor of PONS IP, Luis Ignacio Vicente, with the participation of three leading companies in the world of software-based solutions development: Multiverse Computing, Gammera Nest and Veridas.

During the round table, Esperanza Cuenca Gómez, Director of Strategy and Outreach at Multiverse Computing noted that “the main recommendations that technology-based Spanish SMEs should follow would be to take into account various aspects such as having a clear vision of what they want to patent: what is distinctive and what provides a competitive advantage that contributes to solving real problems and the progress of society, and allocating budget and resources for patent management. The patent management process must be an additional business process, integrated with the rest of the company’s processes and global thinking, where it is important to consider patenting inside and outside of Spain.”

Alfonso Rubio-Manzanares, President of Barcelonaqbit and Vice-president of the AMETIC Innovation Commission, pointed out that “the most important asset of quantum technology companies is their knowledge and the fact that patents on this knowledge transform something intangible into a real tangible value. In this sense, the value of a quantum computing company is currently measured by various parameters, with billing and patents being the most relevant, and investors are very clear about this”.

On the other hand, according to Daniel Sánchez Mateos, Director of Gammera Nest, he stated that “in Spain’s videogame sector there is a lack of IP culture and rights tend to go abroad. We have to understand that if we do not invest in protecting our developments today, when we are widely successful it will be too late”.

Lastly, Leire Arbona Puértolas, Director of Legal Matters and Compliance at Veridas mentioned that “software protection is key and it guarantees position in the market”, adding that, in order to patent, “the task of raising awareness, training and information is essential to be able to protect our innovation”.

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