Patent protection of inventions containing software

It may be possible to obtain a patent on an invention that consists of a programmed solution, where the program is implemented on a generic computer (for example a computer, smartphone, smart TV, tablet), and is designed to perform steps in a patented procedure or a system.

Read more about requirements for inventions on the page: What can be patented?

A computer program (for example source code) is not patentable in itself, but a computer program that implements or models a patentable invention, such as a procedure or a system, can be patented.

There are several other exceptions from patenting, for example business models, the display and/or presentation of information or mathematical formulae/algorithms that are not linked to a patentable invention.

A computer program in itself can be protected under the "Act on Copyright in Literary, Scientific and Artistic Works" (link to Norwegian version in Lovdata).

Patenting rules and practice differ from country to country, for example from the USPTO (United States Patent and Trademark Office) to the EPO (European Patent Office). Norway follows the EPO guidelines.

Why obtain patent protection for computer-implemented inventions?

The field of ICT is developing rapidly: new technology is providing faster, cheaper and more energy-efficient solutions. The costs of developing and updating products must be recouped from sales or revenue from licensing. A patent provides sole right to utilise the invention commercially, and therefore gives protection against others being able to copy and sell the same product. This provides a greater opportunity for income to meet development and maintenance costs. The patent is valid for 20 years regardless of whether the technology that implements the invention changes.

More and more companies view active utilisation of intellectual property rights (patents, trademarks and designs) as part of their business strategy. In addition to patenting oneself, for example, it also means analysing what rights others have that may obstruct patents, so that you avoid infringing these rights. The number of patents being granted in ICT is growing rapidly. Many of these become valid in Norway, which increases the risk of Norwegian firms infringing a patent. You can reduce this risk by acquiring skills in IPR and using them actively in business plans, by analysing the rights of others and patenting your own technology.

If you patent your invention, you then have the opportunity to license out your technology to others, or to share these rights. What is the best IPR strategy will depend on the market and the area of technology.

Patents are a source of information on new technology

We approve patents after a thorough assessment of the application. After 18 months, we publish the application and make it available to everyone on the websites of national and international patent authorities. These sources are useful for finding out what technology exists and who owns the rights to it. Patent information can be used to gain inspiration to continue developing one's own technology or to find potential partners with specific skills and experience to cooperate with.

There are many patents in the ICT area, and it may therefore be difficult to limit a search in order to find relevant technology. The Norwegian Industrial Property Office can help you find relevant information with our guidance and search services.

Conditions to be met in order to obtain a patent in the ICT area

To have a patent granted, the invention must solve a technical problem in a new and inventive manner. The same requirements apply to computer-implemented inventions as to other inventions.

You have to formulate a patent application for each single invention. An application consists of a technical description, claims and, where appropriate, drawings. The technical description and the drawings are based on the design and implementation of the product, while the claims define the invention on which you are applying for a patent.

• Novelty – the invention must be new. This means that the invention cannot be already known. If the invention is known to the general public through publication, in the market, at an exhibition or similar, the claim of novelty is not met.
• Inventive step – the invention must differ substantially from known technology in the same technological field.
• Industrially usable – the invention must have technical character, technical effect and be reproducible.

The patent claims are assessed by case officers at the Norwegian Industrial Property Office. They have years of experience in examining novelty, inventive step and whether an invention is industrially usable.

Read more about requirements for inventions on the page: What can be patented?

We recommend that you seek expert guidance when writing your patent application. Experience shows that this increases the likelihood of having a patent granted.

Copyright in software and source code

Software and source code may be protected by the  "Act on Copyright in Literary, Scientific and Artistic Works" (link to Norwegian version in Lovdata) if what you have developed meets what is known as the threshold of originality. Use of source code requires permission from the copyright holder, and this can, for example, be licensed out to others by sale corresponding to purchase of software.

Open source code (link to Wikipedia) is an example of copyright where using the source code does not cost anything, but is licensed through various types of agreements governing copyright in the products in which the code is used. Publication of source code may prevent others from patenting the same technical solution, and sale of services and products concerning open code or software makes it possible to earn money on this.

Business secrets

There is no registration scheme for business secrets.

You can also chose secrecy. More and more integrated electronic components are now being developed with a view to protecting against copying and theft of IPR. These mechanisms protect source code against copying and reverse engineering, and may also be a way of keeping technical solutions secret instead of patenting them.

Design registration

This gives you sole right to the form and appearance of a product, for example the whole or parts of a screen shot.

Read more about design registration.

Experience from patent applications to the Norwegian Industrial Property Office

Filing a patent application requires good preparation. There are three main reasons why our examiners do not approve patents:

1. The idea is not new
   There are many patents in the field of computer-implemented inventions, and a large volume of literature has been published in the area. An important part of the preliminary work before you submit a patent application is to analyse existing rights and available information on corresponding products and inventions.
    
2. The application is not formulated well enough to provide good rights
   Formulating patent applications is a profession of its own and difficult for those who are not familiar with the way applications should be written. The vast majority of those who apply for a patent and who do not seek expert assistance fail and never have a patent granted.
    
3. The application lacks claims and a description and shows only a concept
   It is not possible to assess applications that do not have an adequate description and claims. It is not the case officers' job to interpret or define what the invention is. When giving a response to a patent application (reality statement) they can only provide information on what must be changed and adapted. The applicant is responsible for formulating the contents of the patent application, and because this requires experience we recommend seeking expert assistance.