What computer-related inventions can be patented

Can I patent software?

While there are no specific exclusions for patenting software or methods that are implemented as computer software or a related product, it can only be patented if the ‘substance of the invention’ has a technical character. This can be tricky to determine. 

Before you apply, ask yourself:

• Is the invention new and novel?
• Is it inventive, and different enough to what's been done previously?
• Is it suitable for patent protection?

Assessing if an idea is suitable for patent protection isn't a simple test. For computer implemented inventions, it essentially boils down to whether the ‘substance’ of the invention is:

• A technical innovation (which is patentable), or
• A business innovation (which isn’t patentable).

How to determine the substance

This comes down to the contribution that the invention makes. Does the ingenuity in your invention lie in a technical aspect, or is it improving something more abstract?

When it comes to computer-implemented inventions, simply putting a business method or scheme into a computer is not patentable, unless there is an invention in the way in which the computer carries out the scheme or method. It must be more than “what” the computer is doing, and instead be more like “how” the computer is actually operating to improve the computer itself.

For example, if you found a way to make the computer process data in a faster way, or store data more efficiently than what was previously known, then it may be patentable (if it qualifies on novelty and inventive step considerations as well).

On the other hand, if you use a computer for its 'known functions' and the innovations lie within a method of doing business, your invention won’t be patentable because the substance of the invention doesn’t involve a technical innovation.

Known functions can include:

• Data storage
• Display
• Data processing
• The basic operation of GPS depending on the type of invention.

Smartphone applications

Most of the time, an app simply performs known functions. Even though you've invented a new way of doing business, your app won't be patentable unless the substance is a technical improvement.

Examples of what applications can be patented

Copyright

In Australia, source code, executable code, data banks and tables are automatically protected under copyright legislation. You don't need to register it, as copyright exists automatically from the moment the work is created.

The code also doesn't need to be ‘original’ in the sense that nobody has written similar code before. To qualify, authors need to demonstrate that they've used their skill and labour to create the software in question, without copying someone else’s work.

Copyright also covers published materials accompanying software such as user documentation, website content, and software user interfaces in the form of original text, images and layout.

Note that copyright protects the specific code of a computer program, but it doesn't protect the ideas or methods the program employs.

Copyright in Australia

Do I have copyright protection in other countries?

Not all foreign countries recognise copyright for code, data banks or tables. Some have processes you'll need to follow to be protected.

If you wish to ensure overseas copyright, we recommend that you don't publish your work until you've consulted with a patent attorney.

Open source code

Before deciding to use open source software or release your own code under an open source licence, carefully consider the terms governing use and distribution and their legal consequences. Open source code often comes with the benefit of tapping into a community of developers. However, you should also be aware of the IP implications of using existing open source code for your own software or releasing your own code as open source.

There are many standard forms of licence terms which are used for open source software. It’s typical for these licenses to place restrictions on the redistribution of the open source software, or software bundled with or built upon the open source software.

For example, if you use open source code as part of your work, there may be an expectation that your code will become subject to the same open source licence as the code you’ve used. Which means there might be an expectation that it can also be freely copied, studied, adapted, modified and distributed. This may get beyond your control and leave you unable to commercialise its use.

Can I patent hardware?

Yes, physical devices that work in an improved way over previously known devices can be patented.

This includes:

• Complete computer systems
• Computer components such as disk drives, memory chips, bus architectures and monitors
• Accessories for computers, such as a keyboard with an improved construction.

The key to the ability to patent your invention is that it has 'improved working'. For example, if you invented a disk that has a new format or data layout  that results in fewer errors, or increased data storage, or faster access, you can patent it. However, if your disk only differs due to the information stored on it, it can't be patented.

Integrated circuit layouts

Circuit layouts are the layout designs of computer chips or semi-conductor chips. In Australia, they're generally not patentable, however, they're automatically protected by legislation that's modelled on copyright law principles.

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