Patenting software? Usually impossible, but there are exceptions

With 49% of European patent applications containing a software element, one would think that patenting software would be the norm by now. Yet software per se is still excluded from patenting in Europe. But there is a clever way around this: link your software to a physical application.

The trick: from source code to application

The key idea is simple. Software by itself is not patentable, but as soon as you combine it with a physical application, it becomes a different story. Consider, for example, software that:

• detects failures in a production line before they escalate;
• controls medical instruments to make faster and more accurate diagnoses;
• regulates smart devices, such as a thermostat that optimizes energy consumption.

With this approach, you shift the focus from source code to your software's impact in the real world. What matters is that your innovation doesn't just work theoretically but actually solves a technical problem.

Marco Coolen, © Bart van Overbeeke

Why description is all-important

With software-related patents, precision is crucial. The success of your application depends heavily on how well you can explain exactly what your innovation does, how it does it, and why that solution is not obvious. Research shows that a poorly explained application is 24% less likely to be granted.

Here are three points to keep in mind:

1. What does it do? Clearly describe what problem your software solves. For example, “Our software detects anomalies in a machine's vibration patterns to predict defects.”
2. How does it do that? Explain how your algorithm or method works. Use technical terms, but don't be too vague. For example, “The software uses a combination of Fourier transforms and machine learning to analyze vibration data.”
3. Why isn't it obvious? Here lies the key to success. Show why your approach is innovative. What makes your software unique from existing solutions? For example, “Existing systems only detect defects after the occurrence of failures, whereas our system predicts this in advance with a margin of error of less than 2%.”

From idea to solid patent

If you can demonstrate that your software ingeniously solves a problem, even a piece of code becomes a serious candidate for a patent. The important thing is that your innovation is not only clever, but also technically sound.

For example, an algorithm that detects energy consumption spikes is not patentable. But couple that same algorithm with a smart device that automatically smooths out energy peaks, and you have a patent-worthy innovation.

In short, patenting software may seem complicated, but with the right approach, it is possible. You can even turn your piece of code into a valuable patent by linking your software to a physical application and describing exactly how and why it works. It's all about impact in the real world. So, if you are innovative in software, think beyond the code. Make it tangible, technical, and unique - and thereby make it patent-worthy.