Software Patents v Business Method Inventions

This is a somewhat controversial issue and there has been various proposals made at national and European level to provide a consistent approach to the registration of software and business method patents.

Patent monopolies are so strict that the Patent Office (and the legislature) are hesitant to award a monopoly right which will hinder innovation and trade within the UK/EU. It is certainly truethat software related inventions are patentable and have been patented both at the UK Patent Office and the European Patent Office. However the patent is to protect the technical effect of the software rather than the software itself, irrespective of this whether software is patentable still remains a legal uncertainty.

There has been much debate between two schools of thought many believe that obtaining patent protection over open source software is a threat to the software industry. Others also display their concern over the possible extension of patent protection over software by making minor amendments to the ‘invention’. On the other hand, it has been claimed that software patents enhance innovation in the software industry and bring it more in line with the USA.

With in-house experts in software technology Lawdit can certainly advise on the patentability of a software related invention. However with such legal uncertainty there always remains a risk of refusal by the Patent Office, as it stands current Patent Office practice is to allow the patenting of programs for computers, which when run on a computer creates a “technical effect”.

i.e. some form of improvement to technology which in itself is patentable. The UK Patent Office and the European Patent Office both take a similar approach and therefore there is consistency throughout Europe for seeking protection.

However, what remains is that each application will be assessed by its own merits and therefore legal advice should always be taken before an application is made. Similarly it is essential that the ‘claim’ in the application is set out to provide maximum protection and to ensure that what is being claimed is patentable.

Business method inventions prove to be more difficult to protect if at all. Business method inventions cannot be patented at the UK Patent Office and will in all circumstances be refused by the appointed examiner. The reason for such a policy is that business ethod claims could lead to very wide patents and therefore hinder business growth. Similarly a business method does not, generally speaking, relate to a particular field/art but would be applicable to every sector.Â

However, it is important to ascertain whether the particular method is a business method. In deciding whether your invention is a business method one must look at whether the overall contribution is in a particular technological area rather than a specific area such as accounting. Â

What is known is that both the UK Patent Office and the European Patent Office both object to patenting way of doing business.

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