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Software protection by patent: myth or reality?
Software protection by patent: myth or reality?

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Software protection by patent

The purpose of Intellectual Property rights is to encourage innovation in the different specific areas of technology in which these rights are sought and obtained; more specifically, inventions related to computer programs (software) can be protected through various forms of Intellectual Property such as copyright, trade secret or as patents if they meet certain requirements.

Copyright grants the author of the program the right to avoid unauthorized copies of their work, especially of the source code, its structure, organization, and sequence; however, other functional aspects of the program are not covered by the copyright.

The protection provided by copyright is aimed at preventing software copying or piracy, while patents grant the holder an exclusive right of exploitation with a greater coverage, since its protection focuses on the procedure associated with the execution of the computer program, which would prevent unauthorized third-parties from reproducing the same procedure using a different source code.

However, the software must meet requirements to be eligible for protection as patent applications, which vary between jurisdictions and

“The computer program must have the potential to provide a technical solution to a technical problem”

which in the case of Spain and Europe, focuses on the fact that they are technical in nature, which means that the computer program has the potential to provide a technical solution to a technical problem that goes beyond the inherent technical interactions between hardware and software. These types of inventions are known as CII (computer-implemented inventions).

Inventions that use software to provide a business method, for example, are not a technical process and, therefore, cannot be protected as patents.

Also, a patent application for an Internet auction system would not be considered to be protected as a patent because the system simply uses conventional computer technology and computer networks, which means that there is no technical contribution.

Such a system may provide a business advantage to its users, but it does not provide a technological advance. On the other hand, the problem of improving signal intensity between mobile phones is a technical problem, even if it is solved by making modifications to the phone’s software rather than its hardware. Such an invention would be protectable as a patent.

The European Patent Office -EPO- adopts the ‘technical character’ criterion of the program to determine if it is subject matter to be protected as a patent, while in the United States other criteria are currently followed which, in practice, are proving more restrictive than in Europe when it comes to admitting patent applications related to software.

Traditionally, the United States Patent Office -USPTO- admitted as patentable subject matter everything that exists made by man, which gave rise to the registration of all types of procedures, whether or not they had a technological component. Times have changed, and anything that refers to a machine, procedure or composition is currently considered protectable as a patent, and anything that does not constitute a law of nature, is a phenomenon of nature or an abstract idea.

With regard to software, the various decisions of the Court of Appeals for the Federal Circuit go in the direction of admitting that a computer program is a patent if it is proven that it is a practical application of an abstract idea. This situation is leading to different decisions and, in the end, as is the case in Europe, proper wording of the patent, described by a professional specialized in patents, is essential for the software behind the invention to be considered the subject matter for patent protection.

Once the barrier of software considered to be patentable material has been overcome, the invention will be subject to a novelty and inventive activity test to determine if it constitutes an innovation and, in such case, is awarded the ‘prize’ to have an exclusive right of territorial exploitation through its concession.

The patent confers a monopoly, but in exchange, it is published as constituting a disclosure that illustrates the innovations occurring in a certain technological field, which in the end contributes to fostering the development of future innovations.

Emerging Technologies

As an alternative to patent protection, it is possible to keep the software a secret, meaning that, unlike a patent, it does not have exclusive rights. In order to effectively maintain secrecy, mechanisms are also envisaged to facilitate restricted and limited access to information in accordance with protocols that can be implemented in each case.

On the other hand, and in relation to emerging technologies, including artificial intelligence, machine learning, blockchain, etc., since most of them are implemented through software, legislative news, and criteria regarding the patentability of computer-implemented inventions will be relevant in artificial intelligence technology.

As a consequence of technological advances in this field, the growing development of IA-related inventions will further enhance the interest in protecting software; in that sense, the decisions of patent offices and courts when applying regulations will set the trends in how to protect software under patent modality, thus constituting a major challenge for the different bodies involved in adapting practice and providing protection to the innovations of this technology that are being generated in a dizzying manner.

Some of the journalistic articles included in this website are protected by Copyright. If you wish to carry out the reproduction, distribution, public communication or transformation, in any medium and in any way, of any article with the employees of your company or with external personnel, contact CEDRO to obtain your own authorization ( /

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