Software patents in Europe and China

Software inventions can be patented in the United States and in many other key jurisdictions. However, not all other countries allow broad protection for software innovation. Two of the more important patent offices, the European Patent Office (EPO) and the Chinese Intellectual Property Office (SIPO), limit how software inventions can be protected. However, many types of software can still be protected in China and Europe.

Europe

The EPO excludes patenting “(a) discoveries, scientific theories and mathematical methods; (b) aesthetic establishments; . ”However, there is an exception. Article 52 (2) 2, excludes “the patentability of the activity (s) mentioned therein only to the extent that a European patent application or European patent relates to such objects or activities as such.” This clause creates an exception for certain types of software innovations to be patentable issues at EPO.

The patentable subject of the EPO includes the technical or hardware related elements of an invention as opposed to functions which are only algorithms. This is not an obvious distinction. In the United States, algorithmic elements can be protected if claimed correctly. In Europe, algorithms, such as an accounting program performed on a general purpose computer, cannot be patented. However, software that does anything about hardware is probably patentable. Eg. Software that controls communication between machines is more likely to be patentable topics. Similarly, software that speeds up graphical display features is probably patentable.

EPO patent applications are also structured differently from US patent applications. The application must follow a problem / solution format. A technical problem is described and a solution, the invention, is then presented. This is in sharp contrast to US applications, where the problem description is often minimized so that it is not used against the applicant as a prior art.

The claimed notions of the EPO application are aimed at the problem. EPO software requirements are organized as two part requirements with an introduction showing elements known in the art followed by another part with the new inventive elements.

porcelain

In China, software, algorithms or computer games are not inherently patentable subjects. Software inventions must solve a technical problem and have physical features. So, as in Europe, your smart accounting or equity analysis algorithms are not patentable topics. Software with physical features, such as accelerating data exchange or storing data more efficiently, solves a technical problem and will likely be patentable issues.

Although Europe and China do not support the protection of software inventions to the same extent as the United States, you can protect many types of software innovations in these jurisdictions.