Software inventions are patentable in the United States, and in many other key jurisdictions. However, not all other countries allow broad protection for software innovation. Two of the more important patent offices, the European Patent Office (EPO) and the Chinese State Intellectual Property Office (SIPO) restrict how software inventions may be protected. However, many types of software can still be protected in China and Europe.
Europe The EPO precludes patenting "(a) discoveries, scientific theories and mathematical methods; (b) aesthetic cre¬ations; (c) schemes, rules and methods for performing mental acts, playing games or doing business; and (d) programs for com¬puters, and presentations of information." However, there is an exception. Article 52(2) excludes "the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such." This clause creates an exception for certain kinds of software innovations to be patentable subject matter at the EPO.
The EPO's patentable subject matter includes the technical or hardware related elements of an invention, as opposed to features that are merely algorithms. This is not an obvious distinction. In the United States, algorithmic elements can be protected, if claimed correctly. In Europe, algorithms, such as an accounting program, that are executed on a general purpose computer are not patentable. However, software that does something to hardware is likely to be patentable. For example, software that controls communications between machines is more likely to be patentable subject matter. Similarly, software that accelerates graphic display functions is probably patentable.
EPO patent applications are also structured differently from United States patent applications. The application should follow a problem/solution format. A technical problem is described and a solution, the invention, is then presented. This is in sharp contrast to US applications where the problem description is often minimized so that it is not used against the applicant as prior art.
The claimed embodiments of the EPO application are directed to the problem. EPO software claims are organized as two part claims, with a preamble that lists elements that are known in the art followed by a second part with the novel inventive elements.
China In China, software, algorithms or computer games are not per se patentable subject matter. Software inventions must solve a technical problem and have physical features. So like in Europe, your clever accounting or stock analysis algorithms are not patentable subject matter. However, software with physical features such as accelerating data interchange or storing data more efficiently solve a technical problem, and so are likely to be patentable subject matter.
Even though Europe and China do not support the protection of software inventions to the same extent as the United States, you can protect many types of software innovations in those jurisdictions.
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