Five things you (really) need to know about patenting software in Europe

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We often receive enquiries asking whether a particular software-related invention might be eligible for patent protection in Europe.

Here are the five things you really need to know:

  1. 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.

  2. 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!

  3. 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’re happy to help!

  4. 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.

  5. Don’t file for software patents at the UKIPO, use the EPO instead
    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”) and, to a lesser extent, the UK Courts. For the time being at least, the UKIPO is best avoided when it comes to seeking protection for software inventions.

Some more detailed guidance on the patent eligibility of software in Europe can be found in our information sheet which can be found here.
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James Leach

James is a Partner and Patent Attorney at Mewburn Ellis. He has a wide range of experience in patent drafting and prosecution at both the European Patent Office (EPO) and UK Intellectual Property Office (UKIPO) across a variety of industry sectors. James has particular expertise in the patentability of software and business-related inventions in Europe.

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