Can software be patented? How do you distinguish between patent and copyright when developing software? Digital technologies open up a wealth of possibilities, and innovations in the field are constantly coming up with new solutions. When it comes to software development, the question of protection is an obvious one. It’s a question of setting a date, defining anteriority and preventing counterfeiting.
The question of software patentability.
When you file a patent application, you obtain proof that you have prior art on the technology presented.
Should you file a patent as soon as possible?
Patent protection means 20 years’ ownership of your industrial property. The PACTE Act introduced provisional patent protection in France to encourage the filing of patent applications, particularly by start-ups. This streamlined procedure gives access to patent protection for emerging technologies that will be the subject of further research and development phases. We advise you to pay close attention to the elements described in the patent. Because once a patent has been granted, you cannot change its content! To find out about all the stages and deadlines imposed by the INPI, we recommend that you be accompanied by an Industrial Property Attorney (CPI).
Patentability and prior art search.
An innovation is patentable according to several criteria. Although the idea is widespread, novelty in relation to what already exists is not enough. While novelty is important, it is not the only criterion for granting industrial property rights. The criteria for patentability are: novelty, inventiveness and industrial application.
A patent does not protect an idea, however new it may be, but a technical solution to a technical problem. Technical” is defined according to the legal regulations governing patent applications.
It is advisable to ascertain the level of patentability of an invention before undertaking an in-depth prior art search. Interpretation of prior patents and scientific publications then enables an IPC to advise you on how to draft a patent.
Please note that computer programs as such are excluded from patent protection, as they are not considered inventions(Article L611-10 of the French Intellectual Property Code). However, certain types of computer program can still be protected by patent, via an inventive process which includes the software. Source code, on the other hand, is subject to copyright.
Software: halfway between patent and copyright.
In short, the Soleau envelope is a simple, inexpensive procedure for time-stamping your documents. When you’re in the development phase, a Soleau envelope is particularly useful for protecting your advances. Admittedly, the Soleau envelope is not equivalent to the issuance of an industrial property title, but it does have real advantages.
- In the event of a dispute, the Soleau envelope is absolutely irrefutable proof of prior personal possession.
- The Soleau envelope can be used totime-stamp different document formats: media (images, videos), diagrams, descriptions of graphic interfaces, source code, etc.
- The Soleau envelope is used as evidence in copyright disputes.
Do you know how to fill out a Soleau envelope?
I want to protect my software. Where do I start?
First determine whether your invention is patentable. The solutions you implement, including your software, may well be eligible for patenting. A preliminary patentability study is crucial. It saves you time, and avoids the inevitable unsuccessful patent application procedure. At this stage, provide your IPC with a detailed description of the innovation. He will then study the characteristics of the invention, and give you his opinion.
If the invention is identified as being potentially patentable, the CPI will advise you to carry out an in-depth patentability study, accompanied by a prior art search. The prior art search is analyzed under the prism of patent law, and according to your objectives. Send us the process flowchart for your software or application, as well as any relevant information about the hardware, if it is special.
Do you want to protect your invention only in France or Europe? Are your development objectives focused on the United States? Don’t hesitate to discuss your business plan with your IPC so that he can advise you on your industrial property strategy.
If you don’t file a patent, the Soleau envelope enables you to time-stamp your work. Source code, for example, is subject to copyright, so you can prove prior personal possession. In any case, even if a patent application is in progress, the Soleau envelope can contain graphic elements and interfaces that are not included in your patent. It is therefore a very interesting and inexpensive complementary procedure for protecting software.
What about the confidentiality agreement?
The confidentiality agreement or NDA (non-disclosure agreement) is an agreement that governs the information exchanged during a collaboration. The NDA is the subject of a specific legal document, or a special clause in a partnership agreement or employment contract.
Setting up a confidentiality agreement is a complementary measure. It limits the risk of disclosure. As a reminder, disclosure is one of the criteria that make an invention unpatentable.
