Software, apps and business methods
Program code or pure business methods cannot be patented in Sweden.
However, an invention of a technical nature which includes a business method, or which is carried out or can be carried out by a computer program, can be patentable. At PRV we treat apps as software-related inventions, which lies on the boundary of what can be patented.
As always, the invention must meet the requirements of novelty, inventive step and industrial applicability. In other words, it must constitute a technical solution to a problem and make a technical contribution that is not obvious in relation to known technology.
Mobile phones, GPS navigation systems and different types of consumer electronics are examples of where computer-related inventions can be included. It is the invention which uses a computer, a computer network or any other programmable device, and the invention has one or more distinctive features that are carried out wholly or partly with the help of a computer program.
The term 'computer program' can have different meanings:
- as a method for solving a mathematical or logical problem, an algorithm, or
- the procedure for running a computer
The exception in the Patents Act for 'merely ... a computer program” which is mentioned in the introduction above, applies to the first sense of the meaning – the actual program code. In other words, a mathematical algorithm cannot be patented, but if an algorithm is used in a technical context, the technical solution that uses the algorithm can be patentable.
Instead, the sequence of instructions in a computer program can be protected by the Copyright Act (see below under “Additional protection”).
A computer program in the second sense of the meaning – the procedure for the execution of the program in a computer – is assessed as any other procedure and can therefore be patentable. In other words, you can get a patent for a computer program's link to a technical solution – the function, method or process which is the result of the program being run on the computer.
That means computer programs which control physical processes, or process physical signals, can be patentable. For example, imagine if you use a machine which is linked to a computer program that controls a process for making pills in two different colours. If you describe the function of the technical process in the patent application, you can get a patent for the whole process. In that way, it is not just the specific computer program that you get protection for, but also the use of other programs which would give the same result.
Further examples of technical solutions using computer programs could be methods for enabling the secure transfer of information through encryption, methods for storing data according to a certain compression algorithm so that more information can be stored per unit of memory, or a protocol for transferring data by using less bandwidth.
Other examples of technical solutions could be a computer program that regulates the temperature in a building or a computer program that enables a telephone switchboard to connect a call.
The term business method is used in patent contexts to signify ideas of an administrative or commercial nature. Examples of business methods are advertising, online services, risk assessment and the computer-based trading of shares.
A pure business method is not technical in nature and is, therefore, not an invention. However, an invention which constitutes a business method, but which makes use of specially adapted technology in a way that the solution to the problem is purely technical, can be patentable.
Imagine that you have an idea for paying bills online. The business method is to attract customers away from bank offices where the staff and premises cost money. The idea is expressed in a technical solution where use and encryption solve the problem in a novel way.
This method is only patentable if the technical solution is patentable. In other words, a technical solution to the problem is required in order to patent the idea.
As well as patent protection, there is additional protection available for computer-based inventions: copyright, circuit design protection and protection of company secrets.
- Copyright – is not a registrable intellectual property right. Copyright arises when you have created your literary or artistic work, if it has originality. Program codes, screen images and associated documentation can be protected by copyright. Copyright only protects the form in which the work was expressed.
- Circuit design protection – is a special protection for circuit designs in semiconductor products, which also arises without registration if the circuit design meets the legal requirements.
- Protection of company secrets – covers all information which in the legal sense is regarded as a company secret. Company secrets cannot be registered for protection, but must simply be kept secret.