10 August 2017

Patentability of Software: A Missed Opportunity For Manufacturers

Sean Leach discussed intellectual property in software in a recent MTA (The Manufacturing Technologies Association) article.

Many manufacturers may think they do not have any intellectual property (‘IP’) in software or computational methods they have created. However, this is not always the case. Software is patentable. Additionally, copyright and confidential information in software may provide valuable commercial property and opportunities.

In 2016, over 10 000 patent applications were filed for computer technology at the European Patent Office. This represents an increase of over 30% in the last 5 years. This field of technology had the third highest number of applications in 2016.  Clearly, this proves valuable IP is available for software.

What IP is available for software and how can it be used?

Confidential information

Rights in confidential information may be used where there has been a breach of an obligation of confidence. For example, a commercial partner, customer, or supplier may disclose your source code to another party, such as a competitor who is to replace you or that relationship. If they should have known the code was meant to be kept secret, it may be possible to recover damages from them for the breach of confidence.


Copyright provides protection for the literary form of your software, i.e. the code itself. A third party would only infringe copyright if they directly or indirectly copy your code. This can be very hard to prove. One approach is to leave ‘fingerprints’ in your code, tell-tale signs such as pointless loops or unused sub routines or other chunks of code which would only be present as a result of copying.


Neither confidential information nor copyright will provide protection against independent creation by a third party. However, patents prevent third parties from using the functionality of your software. Therefore, a patent provides the right to prevent third parties from using the invention, regardless of how they discovered it. There is no need to prove copying.

table sean

Signs your software is likely to be patentable:

  • It is used to control or carry out a technical process (e.g. processing an image or measurement/controlling an industrial process or the working of a piece of machinery).
  • It provides simulations which aid the designing and/or manufacturing of goods (e.g. simulating manufacturing processes or products once manufactured).
  • It is a way of approaching a technical problem (e.g. improving manufacturing efficiency by specially designed software for that manufacturing process).

What is the risk of not patenting software?

Being the first person to file a patent application for your invention is crucial. If someone else gets there first, the patent is theirs. This may leave you only with very limited rights as a “secret prior user” of the invention. You may need to prove you have these rights, and that may be difficult and costly. Even if you are able to do this, you could be restricted from making any developments to your software.

Want to know more?

Mathys & Squire have a team of Patent Attorneys and Trade Mark Attorneys who specialise in supporting manufacturing businesses. We would be happy to advise on strategies for protecting the valuable IP in your software. For more information, please contact Sean Leach

You might also be interested in our research on IP in the manufacturing sector.

We recently collaborated with the Manufacturing Technologies Association (MTA) to gain valuable insight into some of the missed opportunities in the engineering and manufacturing sector when it comes to protecting their IP.

To read the article in full please click here. If you have any further questions please contact Sean Leach