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Why Is It So Difficult to Patent Software?

It is notoriously difficult to patent software. Software comes with its own set of issues that make securing a patent on software very tricky all over the world. But that is not to say that it cannot be successfully done. Software patents can be achieved, but you normally must work with an experienced patent attorney.

Can Software be Patented?

According to the European Patent Office, software can be patented if it is developed in combination with hardware that gives users a technical solution and is also uniquely improving on the prior art. But it is very difficult to get a patent based on these criteria.

Patent for Software in the US

The US rules for software patents, according to Sach-Associates.com, state that to be eligible for patent improvement software must not contain abstract ideas – and this is usually where it is hard to achieve a patent, because usually software is deemed to include abstract ideas. You also cannot get a patent for a natural phenomenon or a law of nature.

In the US, one case that has influenced patent law is the case of Alice v CLS Bank. In this case the CLS Bank Corporation said that Alice Corporation infringed patents that related to their computer programs that were used for operating financial systems. In order to test these claims the courts had to decide how abstract the ideas were, and how inventive the system was – neither of these concepts were easy to decide as there are currently no clear guidelines that have been determined for patent purposes.

It is difficult to secure a patent because in so many cases the software is deemed to use simple and conventional computer processes at its heart, which means it is not sufficiently inventive or original. You are most likely to be able to secure a patent when you can describe the software in highly specific terms. It is important that in order to secure a patent that the software must demonstrate a system and a method that resolves a problem in a technical and inventive way. There must be an inventive step in order to prove it is patent eligible.

China May Be Relaxing Its Rules

In other parts of the world, software patenting is becoming, if not easier, then at least less difficult. In China there is a revision being drafted to the patent examination procedure and this could make it simpler to secure a software or a business patent. According to the Chinese guidelines, the software must be a solution to a technical problem, it must use technical processes, and it should achieve a technical effect.

Image: Image courtesy of Stuart Miles/ FreeDigitalPhotos.net

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