Background

Our patent lawyers are experts in the preparation and filing of patents in the software sector. Their experience stems from working in high-tech companies and having degrees in computer science and patent law.

The challenges of drafting and filing software patents

Many people are debating whether it is possible and worthwhile to protect inventions in the field of software. The dilemma stems not only from the legal aspect ( is it really possible to protect software through a patent) but also from the strategic perspective, does a company have an advantage in filing patents in the software field? May they enforce it? If the description is too specific will it not make it difficult to enforce the patent? Could registering a software patent cause trade secrets such as an innovative and unique algorithm that could not be discovered by any way to be public, and now that it is patented it is exposed to competitors who may copy it?

Which and where software devices and method can be registered as patents?

The question of whether and how a software patent can be registered differs from country to country. There are countries such as the US where software patents can be filed if certain restrictions are applied in accordance with US patent law and case law while in  other countries such as European countries where filing software patents is more limited. However, depending on technological matter a software invention should be  checked case by case for patentability.

Software law in Israel

In the past, the Israeli patent registrar, Dr. Meir Noam, was in opinion that computer software was not patentable, i.e., a software patent  may not be registered as a patent. At that time, the patent registrar linked computer software with a "business method,".

As for the method of doing business, the Registrar then ruled that it was not patentable, since it did not meet section 3 of the Israeli Patent Law, which states that an invention is "…whether it is a product or process in any technological field, it is new, useful, industrial, and includes innovative progress - it may be filed as a patent. According to Dr. Noam Business methods, are taught in the humanities departments of the university, and not in engineering-technology departments, and therefore methods of doing business do not meet the requirements of section 3 of the Patent Law.

Referring to computer software, the IL Registrar made completely different arguments. He explained that since software is protected by Israeli copyright law, it is not possible to protect it at the same time through patent law. It should be noted that the Registrar came to this conclusion even though there is no doubt that software is a technological product - since software is today integrated in almost every technological product, and the software profession is taught in technology departments at the university - so in this respect it meets section 3 of the law. All this despite the fact that the Patent Law does not explicitly preclude the registration of patents on software (as it precludes, for example, the process of medical treatment of the human body - section 7 of the law).

Software ruling in Israel

Dr. Noam added a criterion for deciding whether an invention incorporating software is patentable or not - a criterion based on the physical aspect of the invention. Specifically, Dr. Noam stated that while software is not patentable, and hardware is patentable, a product that combines both hardware and software ("hybrid invention") may, under certain conditions, be patentable. The criterion he established was based on the location of the core of the invention. When the invention core is in the hardware, the invention is patentable, but when the invention core is in the software, the invention is not patentable.

The policy presented by the Israeli patent registrar at the time heralded a dramatic change, and caused a great riot in the technological community. It seems that the Registrar at the time did not think about all the consequences of his decision in light of the fact that many technological inventions, especially in Israel, are based on software.

This led to rethinking at the Israeli Patent Office and he convened a forum of patent attorneys and professional in the patent law field  to discuss this matter. At the end of a rather lengthy process, Dr. Noam was convinced, and right on the eve of his retirement he reversed his policy on the subject, and published a position paper according to which software is eligible to register as a patent. The patent registrar who replaced Dr. Meir Noam made it binding. After an interim period of several months, Adv. Kling published new examination guidelines in which he effectively stated that software patents are patentable.

LEVYIP & software patents 

Our team of experts examine the patentability of each invention and if it may be filed as a patent worldwide. Additionally we check the scope of the invention that may be included at the  patent application, and where to file it. The strategic considerations that are taken into account combine technological, legal and business aspects so when needed the patent will serve the company strategically and financially.

LEVYIP experience in drafting Software patents

The field of software is one of the fields in which our firm leads both in terms of experience and in terms of professional knowledge.

Our patent attorneys have a degree in computers and are specialized in editing and filing software patents. Writing patents in the field of software requires expertise and understanding in the field of the patent technology along with understanding the field of patents so that the patent application will be worded in the most accurate and correct way.