Is software patentable at all?

As attorneys say: it depends! Certain types of inventions concerning software and computer programs are indeed susceptible to patent protection.

The granting of patents on computer-implemented inventions (as “software patents” are officially called) is, however, one of the younger topics of patent law. Therefore, the patent offices’ examination practice and the related case law is – as compared to established fields of technique – still in its infancy and greatly differs depending on the respective countries and regions.

Different practice depending on country and region

In Europe, a computer-implemented invention must provide a non-obvious solution to a technical problem to be patentable. For example, an innovative control software for a car’s ABS breaking system is clearly patentable. On the contrary, a software for forecasting stock indexes is not, since it does not solve a technical, but merely a financial, i.e. business problem (regardless of how accurate the forecast may be).

In Germany, the BGH (the highest decision authority in patent matters) in its decision “Dynamische Dokumentengenerierung” has recently set the basis for aligning the German case law relating to computer-implemented inventions substantially to European practice.

The situation is different in the U.S., where patents were for a long time granted on any kind of invention (i.e. even on purely business-related innovations). The consequences of the heavily discussed “Bilski” case – which could have great impact on software patents – are yet to be seen.

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