Justus Kreuels - 30. October 2018

Can software be patented?

About the patentability of inventions implemented in software

For inventions which are realized as computer programs and thus 'in software', a patent can be obtained if the usual requirements for patentability are met. Computer programs as such (e.g. as pure code) are not patentable. This means that a process (or subject matter) will not be granted as a patent just because it has been realized as a computer program.

In addition to the requirements of novelty and inventive step, an invention implemented in software must also have a technical character, just like any other invention. The requirements of novelty and inventive step must be met by characteristics that contribute to the technical character.

Basically, electronic data carriers on which the software is stored are patentable as well as computers and similar hardware reflecting the invention.

The understanding of what is to be regarded as technical in a computer-implemented invention has changed considerably over the years. In the meantime, there is a realistic chance for overcoming the hurdle of the legal exclusion from patentability of software as such, provided that there is a reference to the hardware.

How else can software be protected?

Copyright law

Trademark protection

Complementary protection of performances (German Unfair Competition Law (UWG)

Regarding Justus Kreuels:

Justus Kreuels, German and European Patent Attorney since 2011/2012, studied mechanical engineering at the TU Munich and the RWTH Aachen. He is co-founding partner of karo IP. A main focus of his practice is the enforcement of intellectual property rights in the field of mobile communication, Internet of Things (IoT), robotics, etc. in Germany.

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