Are software patents allowed in Europe?

The short answer is: Yes, but it depends on what the software actually does.

The European Patent Office (EPO) does not grant patents on any kind of software, but only on software innovations which meet certain requirements. For a patent to be granted for a software-related invention, a technical problem has to be solved in a novel and non-obvious manner.

Watch this 1-minute clip for a quick summary:

As you can see, the central question is:

Does the software provide a non-obvious technical contribution to the prior art?

If the innovation is really in the non-technical aspects, it is not patentable at the EPO. Adding an instruction such as “do it on a computer” also does not help, since this is regularly considered obvious by the EPO. What is patentable is a “technically clever” implementation of the innovation.

An example
Consider a piece of software which analyzes stock indexes and gives the user an indication about when to buy and sell his shares. The underlying algorithm is so sophisticated that it forcasts movements of the stock market with an extremely high degree of accuracy.

Even though such an algorithm would be very helpful, a European software patent will not be granted, since the real innovation lies in a non-technical field (essentially a business method).

If, however, the software implementation is particularly clever in that it solves a technical problem in a non-obvious manner, a software patent will be granted by the EPO.

An example
Think of an innovative database format which allows analyzing huge amounts of stock data in less time, or a non-straightforward scheme of distributing the processing within a server farm leading to improved performance.

What does that mean in practice?

To make a preliminary assessment of the patentability prospects of a software-related innovation, ask yourself the following two questions:

1. Does the software provide a technical effect?

Note that the technical effect has to go beyond the mere automation provided by a computer and the self-evident physical processes happening within the computer when the software is executed. Examples of suitable technical effects are:

  • Controlling the operation of a technical apparatus or a technical process
  • Improving the internal functioning of the underlying computer
  • Improving the efficiency, reliability, robustness, security, or compatibility of the software
  • Saving processing resources, saving network bandwidth
  • Improving the retrievability of data within huge data collections
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2. Is the technical effect achieved in a clever way?

Imagine you would instruct a programmer to implement the software for your new invention.

If the programmer’s answer is: No problem, I’ll take framework <xy> and put everything into the cloud via API <yz>, it all fits perfectly together!” – this would rather not get you a European software patent, since the invention is obvious on the technical level.

If the programmer’s answer is: “Wait, this is not straightforward, I will have to think about how to implement that <efficiently, reliably, with high availability, securely, …>.” – there could indeed be material for a European software patent.

The devil is in the details

These two control questions should give you a good first impression of whether your particular software invention is sufficiently technical or not. But as you can see, it’s really about the individual case.

So in the end, the only thing that helps to assess a particular software invention is a good understanding of what the EPO Boards of Appeal have already decided in similar cases. That’s what europeansoftwarepatents.com is here for. Check out the blog for regular EPO case law summaries relevant to software engineering inventions.

And of course, for any specific questions and requests for personal advice, email me directly at bastian.best@bardehle.de.