Patenting software is a recurring issue for innovative companies, tech startups, and legal professionals who develop digital solutions. The legal framework in Europe is not intuitive, in part because patent laws were conceived long before the advent of computing and have had to adapt on the fly to its emergence and adoption across various technological fields.
Both at the European level and in Spain, the patentability of software is governed by 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 for developing an effective and legally sound protection strategy.
Can software be patented under European law?
Both European and Spanish regulations are based on a fundamental principle: computer programs, 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, that does not automatically mean it can be considered an invention under 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 computer-implemented inventions to be potentially patentable if they have at least one feature that produces an additional technical effect.
The additional technical effect as a key criterion for patentability
One of the key concepts in determining whether a software-related invention is patentable is what is known as the “additional technical effect.”
For the purposes of the EPO and the OEPM, an invention has “additional technical effect” when the execution of the program produces a technical result that goes beyond the normal operation of a computer. It is not sufficient for the software to run on a physical system, nor for the inevitable electrical effects associated with any data processing.
However, there is currently no definition as such of what constitutes “technical character.” In light of the uncertainties that have arisen, both patent offices have gradually provided various specific examples in an effort to clarify this concept.
For example, we now know that the following actions would indeed be of a technical nature:
- enhancement or analysis of digital audio, images, or video,
- inspection of a car's braking system,
- key generation in a cryptographic system, encryption/decryption, or the signing of electronic communications.
Although this has shed some light on the issue, the patentability of this type of invention must be evaluated on a case-by-case basis, so we recommend consulting a professional.
What Is Not Patentable When It Comes to Software
According to the established 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 through software,
- Abstract ideas that are not technical in nature.
Furthermore, the mere computerization of a known process or the automation of a business activity does not confer sufficient technical character to qualify for patent protection.
General Requirements for Patenting Software-Related Inventions
Even when a computer-implemented invention has a technical character, it must meet the general requirements for patentability, which are common to any other type of invention:
- Novelty, as compared to the prior art.
- Inventive step—that is, the solution must not be obvious to a person skilled in the art.
- Industrial application, in the broadest sense.
Furthermore, when assessing inventive step, 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 noting that, regardless of their patentability, computer programs are protected by copyright from the moment they are created.
This protection:
- It depends on the program's form of expression,
- It does not protect the underlying technical idea,
- And it is distinct from and complementary to patent protection.
Therefore, the choice between a patent, copyright, 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 publicly known and that provides a competitive advantage, provided that reasonable internal protective measures are taken to maintain such confidentiality.
This approach can serve as a complementary or alternative tool to a 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 remain confidential, thereby extending the strategic protection of the asset.
It is possible to patent software in Spain and Europe, but only in specific cases, when the program is part of a genuine technical solution. The line between what is patentable and what is excluded is not always clear and requires specialized legal and technical analysis.
At Elzaburu, we have extensive experience advising innovative companies on software patents and intellectual property protection strategies, including the complementary use of tools such as trade secrets.
If your company is developing a technology solution and would like to evaluate the best way to protect it, our team is here to provide you with expert advice tailored to your needs.
Juan de Justo, Associate in the Patent Practice Group at Elzaburu