Patent a software
In some cases, it’s both possible and advisable to patent software. Discover why.
Real Possibilities for Patenting Software
Patenting software in Spain and Europe is not possible. However, this does not mean that we cannot design alternative ways to protect it.
In contrast, in the United States, since 1981, the well-known Title 35 has evolved to allow, from that date, the possibility to patent software or a computer program.
Why can’t software be patented in Europe?
The arguments presented in Europe to reject software patents make a lot of sense — in our opinion.
A function of a computer program can be achieved through multiple methods and programming languages. However, the solution itself may be identical. For this reason, it doesn’t make much sense to patent a software solution.
Lawsuits would be endless.
Patenting Software in the USA
In the United States, it is possible to patent software as long as it provides sufficient inventive activity and offers a clear solution to a technical problem, demonstrating the differential value of the solution in a consistent and measurable way.
History of Software Patents
- The U.S. Supreme Court ruled in the case of Gottschalk v. Benson, stating in its decision that an algorithm, by itself, is not patentable. From this ruling, one could assume that there was a possibility to patent software as long as it was not merely a programmed algorithm in the traditional sense.
- The same U.S. Supreme Court, in the case of Diamond v. Diehr, allowed the registration of a software patent, as it involved a solution with a clear impact on an industrial process. This precedent marked a turning point in the context of software and computer program patentability.
From 1952 until 2014, within the framework of the Alice Corp. v. CLS Bank case, U.S. courts have documented and expanded the interpretation of patent law as it relates to software patents. The common thread, after analyzing several rulings, is clear:
To patent software in the United States, it is necessary to demonstrate a genuine technical improvement.
Ways to Patent Software in Europe
In the case of Europe — and therefore in Spain — the law is clear: it is not possible to file a computer software patent. However, there are alternative forms of protection that may be useful:
Software Trademark Registration: A procedure through which we can register the trademark under which the software will operate, linking its features to the value of that brand.
Patent Software Design: The look and interfaces of some applications can be distinctive and closely tied to the brand guidelines of specific software. In some cases, there have been examples of design registrations that document the software’s screens or user interfaces.
Software Copyright: The copyright rights of software may allow for the registration of source code or software programming. Using this method, the protection of the source code can be attributed to a specific person or company.
Common Motivations for Patenting Software
The motivations to patent software can be quite diverse. Among the most common cases we handle at Let’s Prototype.
- Inventors who want to reserve the exclusive right to exploit their software.
- Private investors who seek patent protection for software before investing in a company.
Alternatives to Software Patents
Whether you are in the United States or in Europe, patenting software—in cases where it is allowed—may not always be the best decision. Remember that patents are public, so once granted, anyone can access the detailed description and innovative aspects of your software product.
Considering the common motivations mentioned above, we recommend exploring alternatives to the complex decision of patenting software.
Inventors, publishing the source code of a software product and its innovative details in order to obtain a patent can give competitors many ideas on how to replicate the solution using different methods or programming languages. For this reason, software patents are often not advisable.
Trade Secret as a Method for Protecting Software
A trade secret is a protection method that is entirely opposite to the principles of a software patent. It is a system of information compartmentalization, where the fully functional versions of the software are limited to the core team or exclusively to the founder.
Today, there are multiple programming environments that allow software to be developed in individual branches, which are later merged into a common trunk from which the final versions are generated. It makes a lot of sense to implement measures to keep these versions confidential and to limit access to them.
Software Encapsulation and Notarized Declaration
Software can be the main asset of many established companies and startups. For this reason, it is often the key element in attracting private investment needed to develop their projects.
Private investors often have certain concerns when they do not have control over this asset, and when they cannot fully understand or limit the exclusive use of the software by the company they choose to invest in.
At Let’s Prototype, we have addressed this type of situation through the encapsulation method, supported by notarized registration and inclusion in the shareholders’ agreement.
- Software Product Encapsulation on a storage device. This encapsulation must be accompanied by a deployment manual for servers and a clearly defined list of functions.
- Once the material is prepared, it must be presented before a notary to formalize a deed of ownership and intellectual property rights over the software. It is essential to clearly identify the developers, the owners of the software, and to whom, and under what conditions, the exploitation rights or the ownership of the software are assigned. Typically, an exclusive transfer of the current version and all future developments is made to the commercial entity responsible for its exploitation.
- Description of the method and the agreement clauses included in the shareholders’ agreement, binding the participating partners in the company to the exploitation of the software ownership.
Advantages of Software Encapsulation and Notarized Registration
- The functional software product will not be published with all the detailed information that a software patent document typically requires.
- It will not be necessary to disclose the most innovative aspects of the software algorithm.
- No ideas are revealed to third parties regarding complex problems that could be exposed through the source code.
- The ownership of the software, as well as its developers and rightful owners, is recognized without third parties having access to its content.
Can I register a software patent?
Not in Europe, but in the United States it is possible to patent software, as long as certain requirements of innovation and measurable technical improvement are met.
How much does a software patent cost?
Patenting software can cost between $10,000 and $15,000. The cost of a software patent is closely related to the level of complexity required to demonstrate sufficient innovation to obtain a software patent in the USA.
Which major companies have patented software products?
Amazon – US5960411 patented the software that enables one-click purchasing. Google – US6370566 registered a patent for part of the software functions of its search engine. Apple – US6983316 patented the multitouch interfaces widely used in iPhone devices, and also registered a software patent for its gesture-based device unlocking system. Just to name a few patent examples.
Is having a software patent important to attract investors?
Professional investors are well aware that patenting software is complex and offers limited legal certainty. It does not necessarily provide real competitive advantages to the business. However, it is common for them to require protection and security measures for the software, as well as tools to ensure that this asset will not disappear from the startup in which they are investing.
Do you intend to patent software?
At Let’s Prototype, we work with patent offices and specialized patent attorneys in the United States. We can also advise you on the best way to protect your software in the European market.
The time to bring your ideas to life is now. We accompany you throughout the entire process: from idea to product.
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