Can you patent software, writes Robert Games, Managing Director, Albright IP?

It sounds like a simple enough question, but the answer is that ‘it depends!’. UK and European laws have excluded from patent protection ‘a program for a computer as such’ since 1977, but the scope of that exclusion has been hotly contested for just about as long.

Where we seem to have got to, 45 years on, is that software can be protected if it makes a ‘technical contribution’, that is, if it constitutes a technical solution to a technical problem. What is ‘technical’? That’s hard to define, but some examples on either side of the line may help.

On the one hand there is software which controls external technical processes. If a new program controls a machine in a factory to make the machine produce better products or use less energy, then the fact that the only change you have made to the machine is to rewrite the software is not going to stop you getting a patent.

The law will recognise that the invention is really a better way of controlling a machine, not ‘a computer program as such’. These things are patentable if they are new and non-obvious.

At the other end of the spectrum, if your program just implements a new way of doing business, say an algorithm for setting prices, it isn’t going to be patentable. ‘A scheme, rule or method of doing business’ is excluded as well, and just implementing that scheme on a computer won’t help. These things are not technical and not patentable.

In the middle there are going to be inventions which are arguable. People will argue over definitions, but perhaps everything which is properly called ‘artificial intelligence’ addresses a technical problem of how you make a computer do something which was previously the proud preserve of human brains.

Does that make it patentable?

Well, maybe… there’s not a simple answer I’m afraid, but if you think you might have some new and technical software please do give us a call.

By Robert Games, Managing Director of Intellectual Property attorneys, Albright IP – albright-ip.co.uk