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Software patents: US vs. Europe

The United States and Europe still have no common criteria: software patents are treated differently on each side of the Atlantic.

What is the current situation for software patents?

Software patents are currently being called into question. Defended by some (large multinationals such as Microsoft and Apple) as essential in protecting their investments, and strongly attacked by others (developers of free software, such as Linux, MySQL, PHP) as something that holds back innovation and advance. However, the rules of the game are not the same on both sides of the Atlantic. Statements of the type “Software is patentable in the US, but not in Europe” are commonly heard. This categorical sentence has many nuances which are worth commenting upon.

What is understood by software in the world of patents?

The Anglo-Saxon term ‘software’ refers, in a nutshell, to a computer program; that is, a set of instructions which enable the operation of a piece of hardware (implemented in a computer, Smartphone or PDA for example). However, it should be made clear that software patents do not protect the code of a computer program as such, but their functionality. The code is protected as intellectual property (copyright), whereas the functionality can be included into the claims of a patent, in many cases in the form of a method with a series of functional stages. This makes sense, given that a substantial variation in the program code, but with identical functionality, will continue to be protected by the patent, but not by the copyright.

What examples are there of software patents granted in the US but not in Europe?

As an example there is Microsoft patent no. 6727830 granted in the US in 2004 (“Time based hardware button for application launch”), which simply protects the control of an application by a mouse “click”, depending on the amount of time the mouse button is pressed for. This patent does not cover the source code used as such to make it function, which would depend on the programming language used and the hardware destination. The patent focuses on protecting a method which comprises the detection of the button of a device (such as the mouse) being pressed, the amount of time it is held down, and depending on whether the time it is held down surpasses a certain threshold, the execution of one or another action with the application associated with the button.

This innovation could be patented in the US because it consisted of increasing the functionality of a button depending on how long it was pressed, but could not be patented in Europe.

Another famous patent was granted to Amazon in 1999 in the US (no. US5960411), regarding a method for preparing a purchase order via a single mouse-click (a function known as “one-click”). In the same way, this was only granted in the US, while in Europe the patent was revoked as the patentability requirements for this type of invention are stricter.

In that case, does it mean that no invention related to software can be protected by a patent?

All of the above demonstrates the difference in protecting this type of invention on each side of the Atlantic. However this does not mean that anything related to software cannot be protected in Europe. European patent legislation considers the protection of so-called “computer implemented inventions” for all those inventions which require the participation of software and a programmable device in which to execute it. Thus, a multitude of inventions that are implemented in software are patentable in Europe provided that there is clear reference to an interaction with hardware.

Is there an example of a computer-implemented patent in Europe?

For example, Vodafone’s European patent EP1542486, which protects a method to manage data from applications stored in the SIM card of a mobile telephone, where the interaction between the software and the hardware is performed exclusively by the SIM card itself.

Are there any other countries which deal with software patents like the US?

In addition to the US, patent legislation in Canada, Korea and Japan are generally relatively permissive with software patents.

Any conclusions or recommendations?

As a conclusion we can confirm that many computer programs can be protected both in Europe and the US provided that they “disguise” themselves as a computer-implemented invention and stress the physical interaction between hardware and software. The more abstract the idea to patent, the more difficult it is to protect it in Europe, with US legislation being more lax in this regard.

Carmen Sánchez-Puelles