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How to protect and patent software?

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Developing software apps requires investments in creativity, time and money. To make a return on these investments, it is necessary to deter copying and unauthorised distribution of your software. There are various ways by which your software may be protected, patenting being the most powerful. On this page we describe these various forms of intellectual property and how they can protect your investments.

Features of software and how it can be protected

Ways to protect your software apps

There are various forms of IP rights available to protect your software apps. Some rights are automatically obtained upon creation, other rights are obtained by simple registration or are filed and subjected to examination before a right is obtained. The most relevant types of protection and the important points of interest are:

Patent

Patents provide you the broadest protection because they protect a principle of operation or concept, for a maximum period of 20 years. A patent gives you the exclusive rights to exclude others from copying, using, importing, and selling a patented innovation. It is a powerful right that can only be obtained when an innovation can be regarded as contributing to technical progress. See ‘Steps to patent software’.

Copyright

Copyright arises from creation rather than registration and protects the work for a period of 70 years from the year in which the author dies. It provides a limited scope of protection, because only an identical or close copy will infringe. If the software app has an original logo, icon or layout, these too may enjoy (a separate) copyright.

Database law

Like copyright, a database right is an automatic right which exists as soon as the database exists in a recorded form. Database rights last for 15 years from the year in which the database was first made available.

Trademark

Trademark law protects the name of the app as well as the logo and layout by a registered trademark. A registered trademark may last indefinitely as long as it is extended every ten years. Sometimes the brand logo used for the application is a simple version of an existing company logo. In that case it may be worth exploring whether additional protection is required.

Design right

Design rights protect the appearance of a product for up to 25 years. If the app’s logo, icon or layout is distinct from existing apps, a design registration will contribute to IP protection. Like copyright, a database right is an automatic right which exists as soon as the database exists in a recorded form. Database rights last for 15 years from the year in which the database was first made available.

Open source software

The use of open source software may offer significant advantages, but license conditions require special attention. Some licenses require the source code of the final software product to be published and made freely available to other parties. In some cases, license conditions even prohibit patent protection.

Steps to patent software

Software inventions are a special type of inventions in the field of patent protection. This distinct category of inventions may not be regarded as a ‘technical’ invention. However, there may be aspects of the software applications that are critical for your inventive concept and can be identified as truly technical and can therefore be patented. Our patent attorneys can explore together with your technical staff, whether such aspects can be identified. The figure below illustrates decision steps if your software can be patented.

Steps to protect your software

Start from square 1 and find your way to square 3. This is always possible. If you want to go to square 2: did you create dedicated hardware? Is it novel? Is it inventive to the known products? If you use standard hardware, you are on square 1a. Your software may have a clear connection to the functioning of the computer. This may render the computer, in combination with the software, and the software as such, novel and inventive according to standard patentability test. A modified test for patentability is applied, if there is another technical effect. This effect may for example concern inventive algorithmic combining of data sources; inventive forms of user interaction/ user interface; and inventive use of signal paths. You may reach square 2a.

Frequently asked questions about patents on software

A patent application or patent includes information about the applicant and inventor, the date of filing, status of the application, and the countries or regions in which the patent application has been filed and granted. Of course, the invention itself is also in the patent. Besides information about the subject matter and the invention, you can also read what falls under the scope of protection of the patent. The last aspect is determined by the claims in the patent.

On the ‘A detailed look at a patent’ page, you will find an example of a patent with an explanation.

Yes, patents provide the broadest protection on software because they protect a principle of operation or concept, for a maximum period of 20 years. A patent gives you the exclusive rights to exclude others from copying, using, importing, and selling a patented innovation. It is a powerful right that can only be obtained when an innovation can be regarded as contributing to technical progress. See ‘Obtaining a patent on software‘.

There are various forms of IP rights available to protect your software apps. Some rights are automatically obtained upon creation, other rights are obtained by simple registration or are filed and subjected to examination before a right is obtained. The most relevant types of protection and the important points of interest are: patent, copyright, database law, trademark, design right.

Your software and app source code may be protected under copyright law. However, this only provides a limited scope of protection, because only an identical or close copy will infringe. To apply for a patent, software inventions need to be regarded as a ‘technical’ invention. There may be aspects of the software applications that are critical for your inventive concept and can be identified as truly technical and can therefore be patented.

Patent-granting procedures can involve a considerable investment. As a patent is essentially a national right, both the granting phase and the maintenance procedure need to be separately completed in each country.

Firstly, there are costs involved with drawing up and filing the application. These often range from 6,000 to 10,000 euros, including official fees. In certain countries, including the Netherlands and Belgium, you do not usually need to incur any additional costs until the patent is granted. Once the patent has been granted, you will have to pay maintenance fees each year.

However, in many countries, including Germany, a granting procedure involves additional costs. 

Anyone who would like patent protection in multiple European countries usually chooses a so-called European patent. This is a cost-effective and uniform granting procedure that is centrally administered via the European Patent Office. This procedure applies to all countries that are signatories of the European Patent Convention. The costs of preparing and filing the application and the procedure up until the granting of the patent can vary considerably, depending on the complexity and length of the procedure. For a European patent-granting procedure, these costs are usually in the region of 20,000 euros. Once a European patent has been granted, you have to choose the participating countries in which the patent should be valid, where you will have to deal with the necessary formalities (this is known as validation).  For instance, many countries require the patent, or at least the patent claims, to be translated. You will also have to pay maintenance fees each year. The validation fees in Europe can quickly rise to over 1,000 euros per country. That is why many companies choose to limit the number of countries where a granted European patent is valid, for instance, countries with the largest potential markets or countries where their main competitors have a manufacturing facility. 

Similar considerations are involved in granting and maintaining patents in large countries outside of Europe, such as China, Japan or the US.

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Kasper Haak

Kasper Haak

  • European and Dutch Patent Attorney, European Patent Litigator
  • Senior Associate
+31 70 416 68 40
Bart Jan Niestadt

Bart Jan Niestadt

  • European, Dutch and Belgian Patent Attorney, European Patent Litigator
  • Partner
+31 40 250 33 13
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