PATENTABILITY OF SOFTWARE

Presentation
Intellectual property is a fundamental pillar of technological innovation: innovation no longer takes place simply in traditional sectors, such as automotive or chemical, but in the computer industry. It is natural that industrial property continues to fulfil its secular mission and fully protects the technical invention of the computer industry.

Software can be protected by copyright and by a patent. These two titles will then be complementary, the copyright protecting the content of the software and the patent to the technical invention arising from it. Often not all the software will be patented. Only the technical invention stemming from the software may be covered. In other words, it will be solely the technical elements used by this software that will be patented.

The field of application of the software is not limited to the office automation sector and industry. It is a technical tool used for the majority of activities, including in those of daily life. Not patenting would mean that one would refrain from protecting any technical innovation.

The CNCPI emphasises that patent protection of inventions implemented by computer is all the more economically justified since software engineering, in the same way as more traditional technologies, bears high research and development costs.

Patents allow protection of the functionality and consequently, unlike copyright, make it possible to effectively protect results of R&D. At a time when a major part of innovation in western companies is based on services and where manufacturing is being relocated, it is particularly important to protect, at a European level, conceptual inventions implemented by computer.

The CNCPI emphasises that the patent constitutes an essential legal tool, both in the service of large companies and in the service of innovating SMEs. It in fact enables SMEs faced with major companies to preserve monopolies, wherever they have innovated. The patent therefore fulfils a major role in economic success and European competitiveness.

Questions and answers

How to define the patentability of software?
The patentability of software goes beyond the simple field of the computer industry. This subject concerns intellectual property and therefore all companies and our economy in general. Extension of the field of the protectable, complementary between industrial property titles, the role of intellectual property in successive industrial revolutions, are so many questions raised when reflecting on the patentability of software.
Many wrong or preconceived ideas are circulating on these subjects. Several lobbies participate in this disinformation and further muddle the debate.
Because of the impact of this question for our countries and for Europe, it is today essential to identify the stakes in this matter and to state a few commonsense truths.

How is IP linked to the patentability of software?
Industrial property has for centuries accompanied and promoted technological innovation. All the major inventions of the first and second industrial revolutions have been able to develop thanks to the protection afforded by intellectual property. From now on innovation no longer takes place mainly in traditional sectors, such as automotive or chemicals, but in the computer industry. It is natural for industrial property to continue to fulfil its secular mission and to fully protect technical inventions of the computer industry.

Why must French companies file software patents?
Companies can and should file software patents for three reasons:

  • Their foreign competitors are already filing software patents in France and in Europe, and are getting ahead.
    American and Asian companies have in fact developed a highly dynamic filing strategy. In the field of software, as in the high-tech field more generally, more than 50% of European patents are already held by non-European applicants, and this trend is worsening.
  • European legislation accepts the patentability of the majority of software
    Software patents have been accepted in Europe for more than 20 years. Several tens of thousands of software patents are being granted by the European Patent Office, in particular because of the convergence of computing and telecommunications. The patent can be granted if the software is novel and non-obvious and if it contributes a “technical effect”.
  • Patenting their software is in their economic and commercial interest
    Filing a patent makes it possible to take legal and commercial control of an invention and to derive optimum profit from it. An industrial property policy also extends to other possible rights (trade mark, model, copyright), and to new methods of operating rights (such as “freeware”, which is perfectly compatible with the patent system). A novice company must begin by studying the patents held by its competitors. With the aid of its Agent it will then learn to integrate its IP policy into its comprehensive development strategy.

What does the patentability of software cover? Often the software will not be patented. Only the technical invention resulting from the software may be covered. In other words, only the technical elements used by the software will thus be patented.