Digitalinnovation creates new challenges every day. The creation of new programs, algorithms and applications is commonplace. When you have an innovative concept that can be of service to many users, it’s tempting to protect the solution you develop.
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Can software be patented?
Perhaps you’ve heard that software is not patentable? In fact, historically, computer programs as such have been excluded from patentable inventions. It is therefore impossible to obtain a patent in this form, or, for example, in the form of computer software source code. In this format, computer programs are protected by copyright. It is a work of the mind, in the same way as Victor Hugo’s novel “Les MisĂ©rables”, which is not considered an invention.
The author of a software program is therefore in a position to obtain protection for its source code under copyright law, which belongs to intellectual property law, and not to industrial property law (which concerns patents). To do this, you don’t need to register with INPI: all you need is proof that you are the author, and the date of creation of the computer program: for example, a registration with APP (Agence de Protection des Programmes), an electronic Soleau envelope with INPI.
Nevertheless, a large number of patents are granted every year for inventions in the field of information technology, and a new class was even created in 2017 for inventions concerning artificial intelligence. Although computer programs as such are not patentable, patent attorneys have long found ways to work with patent offices to obtain protection for their clients’ digital inventions.
How do you patent software?
A patent is an industrial property right which protects a product, a use,a process, a technical solution which must, among other things, be inventive and not obvious to a person skilled in the art.
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This is why a computer program can be patented, for example in the form of a computer-implemented process. It is not the source code of the program itself that is protected by the patent, but its functions within a more global solution.
Copyright to protect the source code, and patent to protect the program’s functions, are therefore complementary when it comes to protecting an invention in the IT field!
As an example, we invite you to consult patent FR 2681 715 obtained in France by the Matra company. Registered in 1991, it proposes a speech signal processing process to attenuate ambient noise when taking a voice command, such as a request made to Siri on an IPhone in a noisy street.
To function, this process is based, of course, on software that includes an algorithm, in this case
|Y[w]| = |X[w]| – opt[α(w)] |B[w]| .
But it was in the form of a process that the patent was filed and obtained in France, nearly 30 years ago!
Patent a solution using a mobile application
In January 2019, the United States Patent Office (USPTO) made public a patent application filed by Uber. The global VTC player wants to patent the use of artificial intelligence, from its mobile app, to detect potentially drunk passengers. By cross-referencing data from the customer’s behavior at the time of ordering (keystrokes, questionable spelling, walking speed, etc.), it would be possible to anticipate the behavior of an intoxicated person. All this would be processed in real time to alert drivers.
– View Uber’s patent application to detect passengers’ condition using Machine Learning
This recent application is a good illustration of the fact that patent protection applies not to the source code of the software itself, but to its functions and uses. The patent protects the technical solution, in this case a computer program.
Good to know: Patent law for computer-related inventions is different in each country, and it is traditionally easier to obtain patents on these technologies in the USA than in Europe.
Did you know?
A company that files a patent in the United States with the USPTO and obtains it does not have protection in France. To do so, it must file a specific patent application with theINPI. The PCT (Patent Cooperation Treaty) facilitates the process, but is not an international patent.
Ask an IT expert for advice!
You have an idea based on the use of a computer program, and you would like to apply for a patent. YesMyPatent, the online service of industrial property firm Touroude & Associates, offers you several tools.
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Patent in 3 clicks! Consult your industrial property attorney, expert in IT, to protect your invention.
A patent attorney has dual expertise in patent law and in a technical field such as IT. With YesMyPatent, you’ll be accompanied by one of our specialized IP attorneys, an IT engineer (software, connected objects, etc.). We support you from the drafting of your patent right through to its grant, at the INPI and/or the EPO for a European patent. In the case of an international project, your IP advisor will work with you to complete the formalities for a foreign patent (PCT).
Copyright or patent, to protect an invention in the IT and digital fields, it’s essential to call on the right professional who understands your invention and knows how to navigate the laws of different countries and the constantly evolving case law in this cutting-edge field.
