Patenting software is a recurring issue for innovative companies, technology startups, and legal professionals who develop digital solutions. The legal response in Europe is not intuitive, among other reasons, because patent laws were conceived long before the emergence of computing and have had to adapt on the fly to its emergence and implementation in the different technological areas. Both in Europe and in Spain, software patentability follows increasingly clear criteria established and applied by the European Patent Office (EPO) and the Spanish Patent and Trademark Office (OEPM). Understanding these criteria is essential to defining an effective and legally sound protection strategy. Can software be patented under European regulations? Both European and Spanish regulations are based on a fundamental principle: computer programs, considered as such, are not patentable. This means that the source code of a program is excluded from patent protection. Furthermore, even if a program runs on a computer, this does not automatically imply that it can be considered an invention in the sense of patent law. What can be patented? However, the fact that software "as such" is not patentable does not mean that every software-related invention is automatically excluded. According to European and Spanish patent practice, a “computer-implemented invention” (CII) is one that involves the use of a computer, computer network or other programmable device and in which at least one feature is carried out by means of a computer program. Both patent offices consider potentially patentable those computer-implemented inventions that have at least one feature that produces an additional technical effect. The additional technical effect as a key criterion for patentability One of the central concepts for determining whether a software-related invention can be patented is the so-called “additional technical effect”. For the purposes of the EPO and OEPM, an invention presents an “additional technical effect” when the execution of the program produces a technical result that goes beyond the normal functioning of a computer. It is not enough for the software to run on a physical system, nor is it enough to have the inevitable electrical effects associated with any data processing. However, there is currently no definition as such of what "technical character" is.  In response to the doubts generated, in an attempt to clarify this concept, both patent offices have progressively provided various concrete examples. Thus, for example, we currently know that the following actions would have a technical character: improvement or analysis of audio, image or digital video, control of a braking system in a car, generation of keys in a cryptographic system, encryption/decryption or signing of electronic communications. Although this has shed some light on the subject, the patentability of this type of invention must be considered on a case-by-case basis, so we recommend consulting a professional. What is not patentable when we talk about software According to the consolidated practice of the EPO and the OEPM, the following are excluded from patentability when claimed as such: Computer programs, Algorithms and mathematical methods, Business or economic methods implemented by means of software, Abstract ideas without a technical character. Furthermore, the mere computerization of a known process or the automation of a business activity does not confer sufficient technical character to access patent protection. General requirements for patenting inventions related to software Even when an invention implemented on a computer has a technical character, it must meet the general patentability requirements, common to any other type of invention: Novelty, compared to the known state of the art. Inventive activity, that is, the solution is not obvious to an expert in the field. Industrial application, understood in a broad sense. Furthermore, in the analysis of inventive activity, only the technical aspects of the invention are taken into account, excluding non-technical elements. Patents and other forms of software protection It is worth remembering that, regardless of their patentability, computer programs are protected by copyright from the moment of their creation. This protection: Applies to the form of expression of the program, does not protect the underlying technical idea, and is distinct from and complementary to patent protection. Therefore, the choice between patents, copyrights, or other legal instruments must be made on a case-by-case basis, taking into account the nature of the innovation and the company's strategic objectives. Can software be protected as a trade secret? Yes. In addition to patents, many companies choose to protect software-related developments through trade secrets, especially when early disclosure of the innovation could compromise patentability requirements such as novelty. Trade secrets encompass confidential information or know-how that is not public and provides a competitive advantage, provided that reasonable internal safeguards are in place to maintain such confidentiality. This figure can be a complementary or alternative tool to the patent. Before filing a patent application, protecting technical information as a trade secret helps prevent the invention from being made public prematurely and jeopardizing the novelty required by patent law. Similarly, after filing a patent application, some of the knowledge associated with the software (internal procedures, additional optimizations, implementation practices, etc.) can continue to be kept secret, thus extending the strategic protection of the asset.   Patenting software in Spain and Europe is possible, but only in specific cases, when the program is part of a true technical solution. The line between what is patentable and what is excluded is not always obvious and requires specialized legal and technical analysis. At Elzaburu, we have extensive experience advising innovative companies on software patents and knowledge protection strategies, including the complementary use of mechanisms such as trade secrets. If your company is developing a technological solution and you want to assess the best way to protect it, our team is available to offer you expert advice and...Read more

On November 12, 2025, WIPO published its latest annual report of World Intellectual Property Indicators 2025 (WIPI 2025), where the number of intellectual property (IP) rights applications worldwide reached record figures. Some of the most notable data: Patent applications registered strong growth: 3,7 million applications, an increase of 4,9% compared to 2023. This figure represents the fifth consecutive year of growth. Applications for industrial designs also grew: by +2,2%, to approximately 1,6 million. As for the brands, a stabilization is observed after two years of slowdown: the global total remained virtually unchanged, with 15,2 million classes requested in 2024 (variation of -0,1%). These figures demonstrate the continued relevance of IP as an engine of economic growth and innovation, especially in a competitive global context. Special attention to patents: indicators of global innovation We want to highlight the data relating to patents from WIPI 2025 and their significance as an indicator of innovation. The long-term trend has been consistently upward, as can be seen in the graph. However, between 2010 and 2024 applications have almost doubled, going from 2 million to 3,7 million.    This historic record of 3,7 million patent applications worldwide is driven primarily by increased applications in countries such as China, India, the Republic of Korea, and Japan. The graph shows how the US spent years. UU. It was the main patent filing office. In the 70s Japan experienced rapid growth, however, since the 2000s the trend has been downward. China has overtaken the European Patent Office and now receives the most applications worldwide.  But let's analyze the applications in detail: International applications for "unique inventions" (i.e., "original" patents, not divisions or variations) have doubled between 2008 and 2022. Regarding technology sectors, in 2023 (the last year with publicly available details) information technology accounted for the largest share of applications — 13,2% of the total — followed by electrical machinery, measurement, digital communication and medical technology. In particular, in the last decade the fields with the most growth have been computer science (+10,3%) and digital measurement and communication have also grown significantly. Another relevant indicator: the total number of patents in force worldwide increased to approximately 19,7 million in 2024, a 6% increase over the previous year. These data confirm that innovation — analyzed from the patent applications they have generated — continues to expand globally, and that the technological transition, especially in fields such as computing, digitization and medical technology, continues as a central driver of innovation. And Spain? What we know through their patents In 2024, Spain registered 8.282 patent applications, representing a growth of 1% compared to the previous year. With that figure, Spain ranked 24th worldwide according to the WIPO innovation indicator. In terms of trademark applications, Spain registered a better result by ranking 16th, with a total of 136.476 in 2024, or 5,3% more than in 2023. In short, the strong growth in industrial property applications in 2024—and especially patents—reaffirms that innovation remains a global priority, and that companies, researchers, and entrepreneurs continue to view IP protection as a strategic tool for competitiveness.Juan de Justo

Madrid, October 9, 2024 – Elzaburu, a firm specializing in Industrial and Intellectual Property, is strengthening its software and technology patent practice to address the industry's rapid growth. This strategy is reinforced by the incorporation of Juan de Justo Comesaña, a graduate in Applied Physics from the UAM (University of Madrid) and a European Patent Attorney, specializes in the protection of technological developments and software. Software, a driver of global growth. The software sector has established itself as a key driver of global and Spanish economic growth. During the pandemic, this industry grew by 2.7%, mainly thanks to technological developments such as Generative Artificial Intelligence (GenAI), a subset of software. Such has been its growth that, according to the latest report from the World Intellectual Property Organization (WIPO), more than 25% of all existing GenAI patents were filed in 2023, with an 800% increase in applications since 2017. In the words of Ruth Sánchez, Partner of the patent practice at Elzaburu, “Generative AI represents a revolution comparable to, or even greater than, that of the Internet. As this technology advances, the challenges also increase, and Industrial and Intellectual Property becomes an essential pillar to protect the interests of creators and companies.” Software patents: a technical and strategic challenge Patents for computer-implemented inventions, like those based on software, require specialized processing to overcome strict patentability requirements. In particular, they must demonstrate technical character, novelty, and inventive step. This requires an expert approach to drafting the specification to maximize the chances of it being granted. Faced with this challenge, Elzaburu incorporates Juan de Justo Comesaña, a graduate in Applied Physics from the UAM and a European Patent Attorney, with the aim of strengthening this strategic area and providing clients with the necessary advice to maximize the chances of success in protecting their innovations. A commitment to the technological future In a context where inventions combine software, hardware, and AI models, the complexity of protecting these intangibles is increasing. Elzaburu's commitment is clear: to continue supporting its clients in every step of the protection of their intangibles. With this addition and the reinforcement of its Patent Practice, Elzaburu reaffirms its leadership as a strategic partner for companies and creators in the protection of their intangible assets, essential in an era marked by the technological revolution.

Artificial Intelligence (AI) is experiencing an unprecedented boom, driven by its ability to take on new functionalities. This versatility allows AI to be incorporated into more areas of everyday life, from technology and science to health, entertainment, and especially in the development of new computer applications. The Rise of Generative Artificial Intelligence (GenAI) One of the most promising applications of AI is Generative Artificial Intelligence (GenAI), which leverages the most sophisticated advances in AI to create content such as text, images, music, voiceovers, and even source code. Since the introduction of Deep Neural Network Architecture in 2017, Large Language Models (LLM) have accelerated the development of GenAI, causing a notable impact on Industrial and Intellectual Property. According to the latest report from the World Intellectual Property Organization (WIPO), AI patents, specifically in the field of GenAI, have experienced spectacular growth. More than 25% of all existing GenAI patents were filed by 2023, with an 800% increase in applications since 2017. In 2014, only 733 patent families related to GenAI were filed. By 2023, that number had surpassed 14,000. Furthermore, scientific publications on GenAI have followed a similar trend, increasing from 116 in 2014 to more than 34,000 in 2023. Table 1: GenAI patents and scientific articles by year. Source WIPO (2024). “Generative Artificial Intelligence. Patent Landscape Report” China leads the way in Generative AI patent developments The country that has developed this technology the most is China: it has filed 38.000 patent families between 2014 and 2023. In fact, since 2017, China has published more patent applications each year than all other countries combined. They are followed by the United States (almost 6.300 patent families), South Korea (4.200), Japan (3.400) and India (1.350), as shown in the table: Table 2: GenAI Patent Families filed, by nationality of the inventors. Source WIPO (2024) “Generative Artificial Intelligence. Patent Landscape Report” Major GenAI patent holders and their applications Major Generative AI patent holders include giants such as Tencent, Ping An Insurance, Baidu, Chinese Academy of Sciences, IBM, Alibaba Group, Samsung Electronics, Alphabet/Google, ByteDance and Microsoft. These players have launched significant developments, such as IBM's Watsonx, a GenAI platform focused on data security, and DeepMind's Gemini, which Alphabet/Google is integrating into its products. Microsoft is also gaining ground following its investment in OpenAI, which has begun filing patent applications. GenAI's main applications are found in sectors such as software, life sciences, document management, business solutions, industry, manufacturing, transportation, security and telecommunications. The most prominent models, in terms of AI patents, include Generative Adversarial Networks (GANs), Variational Autoencoders (VAEs), and decoder-based LLMs. The Role of Intellectual Property in the GenAI Revolution Generative Artificial Intelligence represents a technological revolution comparable to, or even superior to, that of the Internet and smartphones. As this technology advances, the challenges also increase, and Industrial and Intellectual Property becomes an essential pillar to protect the interests of creators and companies. In short, the rise of AI patents, especially in the field of GenAI, underlines the importance of being alert to the new opportunities and challenges that this technology brings with it. Intellectual Property professionals will play a crucial role in this exciting and complex landscape.Juan de Justo