Monday, 2 March 2015

Unitary software patents

The FFII notes that the European commission clarified that the unitary patent will not change the patentability status of computer programs. In an update to a Frequently Asked Question the European commission states it as follows:

The patentability requirements for European patents with unitary effect are identical to those of "classical" European patents. The envisaged regulation on unitary patent protection does not contain any particular disposition or derogation on the patentability conditions for inventions.

The European commission is of course completely correct in this assessment. A unitary patent is obtained by first getting a regular European patent granted at the EPO. Within one month after the mention of the grant is published, the proprietor of the new patent can file a request for unitary effect with the EPO. (Article 9 Regulation 1257/2012). The unitary patent makes no substantive changes to the process at the EPO before grant.

I can thus also predict that the unitary patent will not change the patentability of, say, biotech inventions or any other category of patents.

Under European law, something is not inventive just because you implemented it in software; you cannot get a patent for software 'as such'. However, if the software has technical character and is inventive over the state of the art the EPO will award a patent for it. Thus once the unitary patent system has started it will be possible to get protection of inventions implemented in software with one unitary patent in all participating member states. 

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