Protection possibilities for software and computer-implemented inventions

Legal protection of solutions in the field of new technologies is a very important topic for Polish entrepreneurs. These solutions apply to all process and product improvements, both in our daily lives and in the industry. It is now difficult for us to imagine modern technologies without appropriate software, the creation, testing, and implementation of which involves a considerable amount of time and significant financial costs.

New technological solutions that use computer software in their essence to make processes more efficient or to allow better functioning of devices are referred to as computer-implemented inventions. Thanks to appropriate proceedings for granting protection before the Patent Office, entrepreneurs have the opportunity to obtain a patent for such solutions. The general rules of granting patents, that is, a monopoly on the use of a certain solution, define the features of a solution eligible for such market exclusivity. These are novelty (worldwide), inventive step (non-obviousness), and industrial applicability. For computer-implemented solutions, these features should also be accompanied by the need to demonstrate a further technical effect or to achieve an effect that goes beyond the normal interactions between elements of data processing systems.

How does it work in practice

The object of a computer-implemented solution is a solution that requires the use of software for its proper functioning. Such a solution may also be a method of controlling a device using software, thanks to which a further technical effect is obtained.

A further technical effect, for example, may be:

• controlling an industrial process by means of a computer, or operating an industrial process under the control of software, resulting in improved process efficiency or safety, better management of required computer resources, or higher data transfer rates;
• enhancing data security during transmission using mathematical algorithms, where the software is a part of the invention that detects and performs error correction.

In comparison, the following features do not determine the existence of a further technical effect:

• booking a hotel room or an aeroplane seat;
• enhancing aesthetic effects in music;
• improving business management support.

In order to increase the chances for a positive outcome of the proceedings before the Patent Office and to obtain a monopoly, it is necessary to properly prepare the application documents for the Office. The solution description must adequately provide an implementation example for the filed solution that would demonstrate the existence of a further technical effect.

If our solution is a device, it is essential to describe the technical structure by defining the individual parts of the device in relation to each other and their interrelationships. If our solution is a new process, it is essential to describe the sequence of technical activities and technical means to carry out these activities. It is, of course, possible to define the activities of “processing”, “determining”, “correcting”, “transmitting”, but it should be noted that these activities must be specified in detail, i.e. it should be specified how they are performed and with what tools.

It is also important to note that computer-implemented solutions are entitled to copyright protection, but this protects only the software layer itself.

What to avoid

The regulations of many countries, including Poland, do not allow the granting of a patent to a solution that is a mathematical method in itself. Mathematical algorithms play an essential role in many areas of our life, but if they have not been computer-implemented, and we have not indicated their further technical effect, then unfortunately we must take into account the refusal to grant a patent.

Similar provisions apply to schemes, rules, and methods of conducting business activities. Such solutions (of a financial, commercial, administrative, or organizational nature), although much needed in our everyday life and often requiring high research expenditures, are excluded from patenting.

However, if such an innovative solution uses technical means, such as computer networks or other programmable devices, to perform at least some parts of its business processes, there is a chance to grant a patent.

How to act?

It is worth remembering that to obtain protection for an invention, it is necessary to keep the innovative solution secret until the application is filed with the Patent Office.

In order to properly take care of one’s interests, it is worth considering a strategy of protection of intangible assets that are in the company and using the help of professionals, patent attorneys, who, by choosing appropriate protection strategies, effectively support the protection of all assets of the company.

The article was published on January 28, 2022, in Rzeczpospolita