Computer software gives computers the instructions and data needed to work and meet their users’ needs. It is the opposite of “hardware,” which describes a computer’s physical components. The two types of software include application software and system software. Graphics software, office suites, databases, firmware, and system utilities are software examples.
There have been controversies about whether or not the software is patentable. People often say that software wasn’t made to be patented, which is a common criticism of software patents. Some even say software patents stop people from developing new ideas because most software is not “new” or “not obvious” to other developers with similar technical skills.
While they may have a point, software patents are essential to creators, investors, and large corporations. Given this background, the simple answer to the question “is software patentable?” is yes, but only under certain conditions. This article will explore software patentability, explain why it is patented and how it can be patented.
Software Patentability
It’s important to remember that the goal of getting a software patent is to get high-level protection. Furthermore, it prohibits others from making, using, selling, or importing patented software. For example, Google has numerous patents on its PageRank system, which helped prevent others from copying Google’s search algorithm when competing with Yahoo, Altavista, and Excite. The advantages of obtaining patent protection can be extraordinary.
Apple’s $1 billion verdict demonstrated this against Samsung. A U.S. Court in Apple Inc V Samsung established that Samsung Electronics Company Limited should pay $539 million to Apple Inc for copying patented smartphone features of Apple Inc which they claimed could be seen across Samsung’s product lines for its Admire, Galaxy Nexus, Galaxy Note, Galaxy Note II, Galaxy S Il, Galaxy S Il Epic 4G Touch, Galaxy S Il Skyrocket, Galaxy S Ill, Galaxy Tab Il 10.1, and Stratosphere.
Is Software Patentable in The Us and Nigeria?
In Nigeria, the software can also be protected under Nigerian patent law if it meets the basic requirements for patentability provided in Section 1(1) of the Patents and Designs Act, such as novelty, involves an inventive step that is not obvious to people knowledgeable in the field, and is capable of industrial application.
In the United States, software-based inventions are patentable. However, they must meet specific technical requirements, such as improving computer functionality, improving the computer’s overall process, and solving an unusual computing challenge.
Also, the software patent application must meet one of two requirements: the invention must be much more than an abstract idea, or if it is about an abstract idea, it must include extra parts that turn the abstract idea into an application that can be patented.
As articulated in Alice v. CLS Bank, 134 S. Ct. 2347 (2014), the court established the two-step inquiry for determining whether a particular software is patentable. However, three types of software are not patentable. They include algorithms, scientific law, and abstract ideas.
Software Patentability Around the World
A cursory look at the international community reveals that rules governing software patentability may bare similarities or differences. Countries such as Japan, India, and South Korea, state that software cannot be patented unless it is an element of a hardware invention. In India, software or computer programs are generally not patentable subject matter.
However, computer programs or software may be patentable in some exceptional cases. Under the Indian Patents Act, it is necessary to prove the following key criteria to obtain a patent. They are as follows: the invention must contain patentable subject matter, it must be capable of industrial application, it must be novel, it must involve an inventive step (be non-obvious), and the disclosure of the invention in the patent application must meet specific formal and substantive standards.
On the other hand, China’s State Intellectual Property Office (SIPO) permits patenting of a storage medium and computer program process. In Europe, the software is not patentable through the European Patent Office. It can only be protected as a “computer-implemented invention,” a software program that works in a patented hardware device to do something new and useful.
How Is Software Patented: A Useful Guide
A software patent application must be filed where protection is desired in each country. A special patent application must be filed under the Patent Treaty Cooperation to file a patent on an international scale.
The Patent Cooperation Treaty (PCT) is an international patent law treaty that was concluded in 1970. The Patent Cooperation Treaty supports applicants looking to protect their ideas with patents internationally and aids patent offices in making judgments regarding the awarding of patents. It makes it easier for the public to access technical data about such inventions.
Software patentability is a complicated process that needs the assistance of a lawyer or professional. To patent software, one must do the following;
- Conduct a patent search: This ensures that no one else has invented the software one intends to patent.
- Submit a patent application in the appropriate office: This must be done within a reasonable time.
- Pay patent application fees.
Conclusion
Software patentability is critical today, where software creation is common and rapidly evolving. As has already been said and established, software can be patented. However, the requirements to patent software vary from country to country.