Thursday, November 18 2021   \  Published by OMC Abogados & Consultores.

Can a software be protected through the patent system?

Currently, there are several ways to protect a computer program through the rules of Intellectual Property. For example, Copyright that contemplates the registration of software and web pages. Likewise, the user interface of a software can be protected by registering an industrial design.

A piece of software, known as a computer program, is a set of computer programs, procedures, rules, and associated data that are part of the operations of a computer system. In principle, and according to article 15 of decision 486 of our regulations[1], the software would not be patentable. However, if an invention based on software could solve a technical problem in an innovative way, it would be a matter of protection by the patent system, provided that it respects the normal patentability requirements of an invention: novelty, inventive level and industrial application.

However, it is important to note that software will not enjoy patent protection in all cases. The standard establishes that software as a set of instructions applicable to a computer cannot be considered an invention, which means that it cannot be the subject of a patent. 

It is in this context that it becomes relevant to know that generally, an invention is given by the solution to a technical problem and, in addition to software as such, mathematical methods are not considered inventions under the regulations. This is so because they constitute abstract teachings without technical purposes.

But that does not mean that, for example, a scientific theory or mathematical method can be applied in the development of a technology and that the latter can be patented. Along the same lines, the application of software in the development of a technical solution may be subject to patent protection.

Thus, any software that always produces effects of a technical nature will be considered an invention. For the software to become technical, certain conditions must be met. In the first place, the software must be applied in the development of a technical education linked to a process or a product; for example, through the mention of a method implemented by a computer in order to achieve a specific effect in whose sequence of steps is included in the application of the software or also by the interaction of the software with a certain hardware or device. In addition, it must be taken into account that the teaching in question must constitute the solution to a technical problem, in this sense the solution offered could not be the development of an economic activity or the way in which information is presented that, in themselves are not considered inventions by regulations.

So, is it possible to patent software? the issue is quite complex and controversial than it might seem at first glance. To try to put the aforementioned in context, we will point out a brief case in which the software is of a technical nature. 

There is a lot of information in video, recorded in formats that are no longer used today and that are being converted into digital formats, but what if modern display devices or screens could not produce clear images due to the format in which the video was used? originally recorded? This without a doubt constitutes a technical problem, so if someone were to develop a reproducing device that included special software to process video information with sharper images and that also had the combination of the device's elements defined, with interaction between themselves and Due to functions aimed at solving said problem, we would definitely be dealing with a matter considered an invention protectable by the patent system, since it can be attributed a technical nature to the matter developed and in turn it can be pointed out that development comes from a solution is a technical problem .

In conclusion, it is possible to protect a software-based invention by the patent system, as long as it can solve a technical problem in an innovative way and complies with the patentability requirements.


Author: Lucero Ticona – IP Lawyer

Law firm: OMC Abogados & Consultores

[1] Article 15.- The following will not be considered inventions:

a) discoveries, scientific theories and mathematical methods;

b) the whole or part of living beings as they are found in nature, biological processes

natural, biological material existing in nature or that which can be isolated, including

genome or germplasm of any natural living being;

c) literary and artistic works or any other protected by copyright;

d) the plans, rules and methods for the exercise of intellectual activities, games or activities economic-commercial;

e) computer programs or software, as such; and,

f) the ways of presenting information.

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