Are you wondering how computer programs or software can be patented? Is it possible to register a software patent? This is a very complicated subject in which we must differentiate the registration of “software functionality” which, in certain cases, may be registered as a patent or utility model, from the registration of “source code” which protects the practical implementation of specific software, regardless of its final functionality (i.e., not protecting “software for” but rather “how the software is written”).
Consensus concerning the legal protection of software
In view of the lack of any international consensus on how to protect software, many countries have come up with their own legal framework and form of protection. For example, the Japanese Patent Office, the United States Patent Office, the European Patent Office, and the Spanish Patent and Trademark Office allow software to be patented under certain conditions (those known as computer-implemented inventions). Nevertheless, in addition to the foregoing, the source code of specific software can be protected in Spain under the Intellectual Property Law which refers in Title VII, more specifically in Articles 95 to 104, to computer programs.
Although there is no doubt that a computer program or software is the product of the author’s intellect and creativity (high technicality and high creativity), it is more difficult to define the concept of originality and inventive step in comparison with other earlier works that are similar or belong to the same IT area. To that end, in Spain, the Spanish Patent and Trademark Office follows the case law criterion of the European Patent Office and only allows the registration of computer programs with a certain functionality that has an impact on a physical variable (for example, software which optimizes database access speed would be patentable, but the database itself would not).
On the other hand, all source code is assimilated to literary or scientific work and can be protected under the criteria of copyright and not intellectual property. In any case, both protections are not exclusive, but rather complementary, because the source code is not protected as a patent, but the functionality which allows solving a specific technical problem is protected, while the registration of the source code aims to protect the physical manifestation of the idea in a specific sequence of instructions.
What can be protected as intellectual property?
Protection can be granted for the technical instructions that give it shape and configure it, i.e., the source code. However, the prior documentation required for its programming and development, its user guide or manual, as well as the subsequent software versions or updates are also protected.
Conversely, protection cannot be granted for the idea, a principle, or an outline of what the project will be, or its intrinsic functionality (another author creating software with the same function but with a different source code is considered completely admissible). This is why it is highly advisable to sign a confidentiality agreement when disclosing our project to any person or entity during the prior developmental phase so that these third parties do not make use of that idea or principle which has not yet been developed.
The problem arises because software and computer programs are intangible products that are developed in small electronic media, so rights can be infringed relatively easily.
In that case, how can software be protected?
It is best to leave software protection in the hands of professional consultants who have sufficient experience to detect and to take the appropriate actions against infringements of this type.
At Jesana IP, we are at your disposal. Contact us for more information about our software and computer program protection service.