Comment: When you write great software, don't forget patenting

PAPERWORK can provide useful protection, writes Graham McGlashan
Statue of James Watt. Picture: TSPLStatue of James Watt. Picture: TSPL
Statue of James Watt. Picture: TSPL

Since James Watt had a patent specification for a steam engine accepted in 1769, technology has progressed at an incredible pace.

Today, the backbone of much of our technology lies in the digital realm. Intellectual property (IP) continues to be of immense value, providing protection for products, processes, and services that involve creativity, innovation and skill.

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IP – patents, trademarks, copyright, design and know-how – has become a widely recognised asset for companies. It can provide a valuable asset to companies engaged in digital innovation, an area in which Scottish-based companies have been successful.

Digital technologies and the existing IP system have had an uneasy relationship with many innovators in the digital realm confused about the options available for protecting their IP. However, many forms of IP can be used as protection for digital innovations.

Patents can provide useful protection for technical concepts. Many computer implemented inventions have been patented in the US, UK and Europe. Confusion arises because the criteria for patentability of computer implemented inventions vary between jurisdictions.

The European Patent Office (EPO) has a test in which claimed subject matter that is novel and inventive is potentially patentable if it has a technical character. A computer program itself can potentially be patented at the EPO if it is capable of bringing about, when running on a computer, a further technical effect going beyond the “normal” physical interactions between the program and the computer on which it is run.

Types of invention that have been granted patent protection by the EPO include software for controlling apparatus or machinery, software that processes data representing images and software that improves the operation of hardware or achieves an increase in effective memory or speed.

Therefore, innovators are not necessarily unduly penalised by the patent system for using modern methods. If this was the case, then it may lead to a strange situation of an invention being potentially patentable if it was implemented purely using old fashioned mechanical methods but not if it was implemented using a modern reprogrammable system.

The approach taken by the EPO is arguably a sensible and pragmatic answer to this problem. However, good professional advice from a suitably qualified patent attorney specialising in this area is always recommended.

Copyright provides a degree of protection for computer software code. However, the protection afforded by copyright is generally not as strong as patent protection since copyright is infringed by direct copying (rather than independent creation), which can be difficult to prove.

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In addition, copyright protection applies to the code used to form the software, whereas patent protection can often be obtained for the fundamental new ideas and concepts that lie behind a new piece of software.

There are other forms of IP protection that could be of interest to digital industries. For example, visual aspects of digital products are often critical to their success.

There are a number of mechanisms available to protect IP associated with digital innovation, and it is up to the innovators to ensure the results of their skill, investment and labour are protected.

• Graham McGlashan is a chartered and European patent attorney at Marks & Clerk