November 24, 2021
By Denis V. Keseris and Andrea Ngo 

Is it true that software is not patentable?

This is a common misconception. While the actual lines of code are not patentable, the functional aspects of software can be patentable. In fact, in 2020, 63% of patents issued in the United States were for software-related inventions.

Then why do I keep hearing that software is not patentable?

Most jurisdictions place limits on patenting software inventions, and the guidance published by different patent offices around these limitations has not always been clear. Moreover, software patents are an area of patent law that is still in flux though eligibility requirements are becoming increasingly well-defined and harmonized. Many people also confuse the code, which cannot be protected by a patent, with the functional aspects of the software, which can be patentable.

I am told that my software is protected by copyright, so why would I need a patent?

Copyright prevents others from copying your specific code but does not provide protection against others independently developing the same software or copying the functionality of your code. Copyright would not protect against a competitor developing a different code that achieves the same result, as long as there is no evidence of actual copying. A patent, on the other hand, prevents competitors from practicing the functional aspects of the software claimed in your patent. Software patents therefore provide much broader protection than copyright.

What is the point of getting a patent if I don’t have the resources to sue infringers?

Patents are both powerful commercial tools and valuable commercial assets. Like any asset, if useful to you or others in the market, it can increase the value of your company. Moreover, a patent allows its owner to prevent others from making, using, importing, and selling functional features of the claimed software. It is important to remember that while you may currently have no intention of defending your patent rights, potential partners, investors and strategic acquirers to whom investors may eventually want to sell are likely to value the opportunity to do so (sometimes on your behalf!). As such, patents give you (or your investors/partners) a tool to control the supply of your software in the market, ultimately making your business more attractive as an investment. Finally, your published patent portfolio can also work to deter or slow potential competitors from entering the market without you even knowing it, which often leads to you unknowingly becoming a more appealing target for acquisition.

So, what types of software invention are patentable?

Generally, inventions that are useful, in the sense of having the characteristic of being susceptible of use in commerce, are patentable.  When it comes to computer-related inventions, those that have an impact on the physical world, or optimize energy usage, or provide faster calculations have generally been considered patentable. As with any other invention, a software invention must also conform to other eligibility requirements. Each jurisdiction has slightly different requirements but generally, the invention must be new, useful and non-obvious to be patentable. Think about the unique features of your software and speak with a patent professional to assess whether these features are likely to make your software patentable.

OK, and what types are not patentable?

Software inventions that have the sole purpose of automating a task that a human could perform using pen and paper, or only provide generic components and features are generally not patentable. More generally, scientific theorems or abstract ideas are usually not patentable. And just like with traditional patents, software inventions that do not provide any novel function are not patentable.

When should I be thinking about getting software patents?

You should speak to a Bereskin & Parr IP professional as early in the design process as possible, and certainly before you publicly disclose any concepts or start commercializing your software. In developing an initial IP plan with you, your Bereskin & Parr IP professional can help you determine what to protect, when to protect it and how to protect it in order to build a portfolio of tools and assets that will bring maximum strategic value to your business.


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