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Are software-based inventions eligible for a patent?

When computer software is granted copyright, it is possible to prevent copying or duplicating it.  However, when a software- based invention is registered as a patent, the owner has more robust rights and can prevent others from making any actual use of the algorithm. Therefore, it is logical to assume that patent owners would prefer to enjoy the rights granted by a patent, but the question is, “is it possible?”


Is a software-based invention eligible for a patent in Israel?

Only until a few years ago, inventions based on computer software were strictly non-patentable in Israel. Even today, a computer program is protected by copyright as a literary work. However, the Patent Office policy regarding patenting software-based inventions has become more flexible and more and more such inventions are patentable.

According to a 2010 Patent Office policy notice, software-based inventions can be patented if they have technological advancement. According to Section 3 of the Israel Patent Law of 1967, “an invention, whether a product or a process in any field of technology, that is novel, beneficial, has industrial use and inventive step – is patentable.”

When it comes to computer programs, the question is whether the invention is technological in nature. An invention is patentable if it includes software that is an inseparable part of a device or system and if the device or system is the heart of the invention and has novelty and inventive step. This type of invention is called a hybrid, since it is comprised of a technological device or system and software intended to operate it.

The Patent Office recently ruled that it is okay to patent an invention that combines software and a device or system such as a computer if the function of the software is tangible, like improving the performance of the device or system.  In inventions like these, it is important that your patent attorney drafts the application, particularly the claims, in a way that emphasizes the improved performance of the device or system gained by the software and that the combination is novel and has inventive step.

The right way to draft a patent application can greatly contribute to the decision by the Patent Office to accept your patent. It is therefore important to consult an experienced professional patent attorney before filing your application with the Patent Office.  Ask Dr. Sharona Lahav to learn more about filing your software-based invention in Israel.


What about the United States?

U.S. policy regarding the patentability of software-based inventions shows much more flexibility and “permissive” than that of Israel.

In the United States, protection for inventions based on a computer program was already provided in the early 1980s – the decision on granting protection came as a result of the Diamond v. Diehr case, which held that inventions based on software are patentable.

The U.S. Department of Justice, based on the judgment, issued clear instructions on patenting software.  According to the issued instructions, the software must produce a useful, concrete and tangible result in order to be considered eligible for a patent.  Over the years, more and more cases and reasons for which software-based inventions can be considered patentable were added – and as a result, the number of inventions based on software that were patented grew.

However, it is important to note that even in the U.S. this is an issue that is even now considered controversial.  The permissive policy that is currently practiced in the United States (when compared to other countries) for patenting software-based inventions, has been criticized by various organizations, which argue that this policy allows big computer companies to use this policy to strengthen their monopoly, which hurts smaller companies with lower budgets.
Dr. Sharona Lahav - Patent Attorney    
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