Spotlight on Software

As we move deeper into the fourth industrial revolution, software is becoming ever more inextricably linked to how we live and work. With advances in technologies such as cloud computing, the internet of things, machine learning, block chain and quantum computing, new developments in software are continuing to change the world we live in at a rapid pace.

Although there are many companies whose sole focus is software development, there are a growing numbers of companies who are developing new software as part of a wider technological offering. Consequently, it is growing increasingly common for large software developers to see themselves as technology companies, rather than as software companies.

Patent protection, when available, can be an extremely useful tool for securing strong protection for software-related developments. However, patent protection for software is not always possible, owing in part to software sitting in a grey area of what can and cannot be patented. In some cases, forms of IP other than patents (e.g. copyright) may be a more effective route for protecting software.

In view of the complicated legal framework that exists around software inventions, a company looking to secure protection for new software-related developments needs sound advice to if they are to get to an IP position that suits their needs. Here at Mewburn Ellis, we have the technical and legal expertise needed to help our clients achieve this.

When about it comes to securing IP protection for software, there is a common misconception that software isn’t patentable. In fact, it is possible in certain circumstances to obtain European patent protection for novel software, provided it can be shown that the software solves a “technical problem” in a non-obvious manner.

The law in this area is complex (we’ve written an in-depth study here), and there is ultimately no substitute for talking with us about your business needs, but here are five key things you need to think about if you are thinking about seeking patent protection for some newly developed software:

Consider what is new about what the software is doing, and consider whether that new bit is “technical” or “non-technical” in nature
Even if the software is based on an original idea, you will struggle for patent protection in Europe if that underlying idea relates to a non-technical process.

If you’re struggling to determine what might be viewed as “technical”, then seek help!
European patent offices have always resisted providing clear guidance on what is/isn’t “technical”, so this is a grey area. We can help!

If the invention is based on a business/administrative idea, think twice
It’s not impossible to get patent protection in the context of a business/administrative process, but it’s rare, so you should seek advice before proceeding. Again, we can help!

Consider whether copyright protection might suffice
Copyright will stop others from copying your source code, without the significant expense associated with the patenting process. There are limitations to copyright protection, but it’s worth considering whether this might enough for your purposes, especially if it’s not clear whether the underlying invention will be considered patent eligible in Europe.

Think carefully about jurisdictions
Not all patent offices handle software inventions in the same way. For example, the UK Intellectual Property Office (“UKIPO”) has a very restrictive approach to assessing the patentability of software inventions which is demonstrably out of step with the European Patent Office (“EPO”). Where best to seek protection for software can vary depending on the nature of the software that has been developed, and it is best to seek our advice on this.

The 2000s and 2010s saw an unprecedented amount of innovation and change within software. From social networking to cloud computing, from machine learning to blockchain, we have witnessed a number of significant developments that have changed the way we live, work and play. So how will the software ecosystem change over the 2020s and 2030s? If the past decade was anything to go by then making definitive predictions seems nigh impossible.

Here are some areas we will be watching closely as we head towards the 2030s:

New applications for AI and machine learning: With AI/machine learning tools now maturing, it will be interesting to see the new ways in which these tools find new uses in our everyday lives.

Quantum computing: As quantum computing technologies continue to progress, we look forward to seeing if new and useful applications can be found for this emerging technology. We are keeping a close eye on quantum computing developments, please see our Quantum spotlight page if you are interested in finding out more.

FinTech: The blockchain and cryptocurrencies have been agents of change which have already transformed the world of finance beyond recognition. We think more change is to come in the world of FinTech. It will be particularly interesting to see if cryptocurrencies progress to being used for everyday transactions, and whether any new applications can be found for the blockchain. We are keeping a close eye on FinTech developments

Encryption: Digital communications and transactions rely heavily on encryption, and with the emergence of technologies such as cryptocurrencies, this dependence continues to grow apace. In recent years, modern cryptography techniques have proved robust against attack, but could emerging technologies such as quantum computers expose vulnerabilities in modern encryption techniques? It will be interesting to see if encryption techniques can continue to evolve at a pace that keeps our data, communications and transactions secure.

Find out more about our expertise in this space.

It is well-known that it can be challenging to obtain patent protection for inventions relating to software in Europe. Indeed, it is common for software developers to assume that European patent protection is not available for their innovations

In this report we take a close look at whether the European Patent Office (“EPO”) and the UK Intellectual Property Office (“UKIPO”) handle software inventions differently. We also reveal some strategic insights that we think will be of benefit to companies seeking patent protection for software inventions in the UK and Europe.