Patenting Software and Algorithms
Overview
Patenting software – patents for algorithms, AI, and IT solutions
Building an app, a SaaS system, an AI algorithm, an embedded solution, a process automation tool, or a data processing technology? As a rule, the source code itself is protected by copyright – but that is not the same as a patent. A patent does not protect the code layer; it protects the technical solution implemented through software – what the program does, and how it solves a technical problem.
At EUPATENT, we help you assess whether your IT solution qualifies for patent protection, or whether you are better served by copyright, trade secret protection, know-how, license agreements, or an IP strategy combining several of these tools at once.
Patenting software – the law versus the reality
In Europe, a computer program “as such” is not treated as a classic invention (Article 52(2) and (3) of the European Patent Convention). That does not mean, however, that every software solution is excluded from patenting. The European Patent Office (EPO) allows the protection of so-called computer-implemented inventions (CII) where the software produces a further technical effect – one that goes beyond the ordinary interaction between the program and the computer it runs on.
In practice, it is precisely the presence of such a technical effect that determines whether an application stands a chance of success.
Patentability
Patentability requirements for software in Europe and Poland
To stand a chance of a patent, a solution must be new, involve an inventive step, and be industrially applicable. For software, however, an additional mechanism is decisive: in Europe (EPO) and in Poland (UPRP), the fate of an application turns above all on the technical character of the solution. When inventive step is examined, only the features that solve a technical problem count – the program’s business function, the presentation of information, or a mathematical method “as such” are not enough. The Polish system is consistent with the European one: Article 28 of the Polish Industrial Property Law likewise excludes computer programs “as such,” and the UPRP applies an analogous technical character test.
That is why the way the technical problem and the technical effect are described at the application stage matters so much.
Patent protection may be available for, among others, algorithms that improve system performance, and solutions in cybersecurity, signal processing, device control, machine learning, IT infrastructure optimization, or communication between IT systems.
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What instead of a patent? Alternative forms of IP protection in IT
Not every piece of software is worth patenting – and sometimes a patent is simply not the best tool. Often the more effective route is to protect the code as a copyrighted work, secure the solution as a trade secret (Article 11 of the Polish Unfair Competition Act), use NDAs, well-drafted licenses, and terms of use for your system, or rely on the protection of databases, trademarks, or technical documentation.
Keep in mind that when an algorithm runs “deep” inside a server (for example, in a SaaS model) and is hard to detect in a competitor’s product, a patent can be difficult to enforce – in such cases a trade secret gives better real-world protection. In IT, a good strategy usually combines several forms of protection at once, matched to your business model.
The software patenting process
The best starting point is an analysis of the solution and a prior art search. The next step is drafting the description of the invention, the patent claims, and the filing documentation. In software cases, the language of the application carries particular weight – it should bring out the technical character of the solution and the technical problem it solves, not merely the app’s business function.
A well-prepared application with a clearly highlighted technical effect significantly increases your chances of obtaining protection and makes the patent easier to enforce later on.
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The business benefits of a software patent
A patent can increase the value of your technology, make conversations with investors easier, support licensing, curb copying of your solution, and strengthen your company’s hand in negotiations. It can also form part of your tax strategy – for example, when assessing whether you can use Poland’s IP Box relief (a 5% tax rate on income from qualified intellectual property).
Importantly for the IT industry: in Poland, the qualified IP can be not only a patent but also the copyright in a computer program – a right that arises automatically, without registration. The relief does, however, require R&D activity, a link between the income and the specific right, and separate accounting records. IP Box rules change from time to time, so each situation is worth analyzing individually.
Patenting software in the US (USPTO) and in Europe (EPO)
In Europe, the emphasis is on the technical character of the solution and its further technical effect. In the US, what matters more is whether the solution boils down to an abstract idea (the Alice/Mayo test under 35 U.S.C. § 101) and whether it is integrated into a practical application. In practice, the European “technical character” route tends to be more predictable for software than the American abstractness analysis – which is why your protection strategy should be consciously tailored to the market, your business model, and your commercialization plans. We handle both procedures, so filings on both sides of the Atlantic can be planned consistently.
For AI-based solutions there is also a new obligation to keep in mind: the AI Act requires detailed technical documentation for high-risk systems. Under Europe’s absolute novelty regime, disclosing such documentation before a patent filing can destroy the novelty of the invention – so think about patenting before the disclosure obligations arrive.
The costs of patenting software
The cost of a software patent is not a single fee but the sum of several elements: the attorney fees for drafting the application (description and claims), the official fees (filing, search, and examination), the costs of prosecution (responses to office communications), and – for a European patent – validation and translations in the selected countries, plus renewal fees that rise over time. A realistic budget for the entire procedure is between EUR 10,000 and EUR 20,000.
FAQ
Frequently asked questions
No. The source code itself – the specific lines a developer has written – is protected by copyright automatically, from the moment of creation, and it is not what gets patented. What a patent can cover is the technical solution the program implements – the algorithm (for example, a method of compressing data or controlling a device) – provided it has technical character. In other words, a patent protects the "recipe" for how something works (the algorithm), not the written code. That is why rewriting the same solution in another programming language does not sidestep the patent, even though it creates a new copyrighted work.
In Europe, a computer program "as such" is excluded from patenting. To be patentable, software must solve a technical problem and produce an effect that goes beyond the ordinary operation of a computer – for example, making data transmission more secure, speeding up image processing, saving memory, controlling a machine, recognizing images or sound, supporting medical diagnostics, or making a computer or smartphone easier to use. Mere automation of a business process, a mathematical method, or a way of presenting information is not enough. The European Patent Office assesses inventive step on the basis of technical features alone – a purely business idea implemented "on a computer" will not win the office over.
The usual answer combines two routes. The first is a patent: in Europe, an AI algorithm can be patented if it serves a specific technical purpose (such as image recognition, diagnostics, or process control), though the mathematical model "as such" cannot. The second is trade secrecy: the model, its weights, and the training data kept on your own servers are often best left secret, because they are hard to inspect and reproduce. In practice, you patent what is visible and detectable, and protect the rest as trade secrets. Bear in mind that the named inventor must be a human – an AI cannot take that role.
There is no separate, higher "software fee" – official fees are the same as for any other invention. A European patent runs to around EUR 10,000–20,000 for the entire procedure. Part of these costs can be recovered through grants.
Releasing your program as open source does not bar you from patenting, but it hides two traps. The bigger one: publishing the code is a disclosure of the invention, and Europe has no grace period – if you publish before filing a patent application, you lose novelty and the patent is out of reach. So the rule is: file first, publish later. The second trap is licenses (such as Apache 2.0 or GPLv3) that contain a patent grant clause – by releasing your code, you may automatically be granting its users a license to your patent.
Usually 2 to 5 years. Software applications tend to move more slowly than average, because offices question their technical character more often, which prolongs the exchange of correspondence. A well-prepared application moves faster, and the procedure can be accelerated where needed (e.g. PACE at the EPO, or PPH). Remember that protection counts from the filing date, not only from the grant of the patent – you can retroactively claim damages for unauthorized use of the invention.
No. For software, the qualified IP right is the copyright in a computer program, which arises automatically and requires no registration or Patent Office decision. That is the right most IT companies rely on to tax their income at 5% instead of 19%. A patent is also a qualified IP right, but for software alone it is not needed. You do have to meet the statutory conditions – among them, creating or developing the software within your own R&D activity and keeping separate accounting records.
Only if you keep it confidential. In Europe, virtually any public disclosure before filing – a demo, a conference talk, a GitHub post, a beta test without a non-disclosure agreement (NDA), a press article – destroys novelty and closes the door to a patent. Conversations covered by an NDA are safe. And note: making your product available in Poland destroys its novelty worldwide. The golden rule: file first, present the product later.
This is a key question to ask before you file. A patent has real value only if you can show in court that a competitor is using your solution. With an algorithm running on someone else's servers, that can be impossible – you cannot see what is happening "inside." That is why claims are best drafted around what is observable (the product's behavior, its interface, its output data) rather than around the hidden internals. If infringement could not be detected anyway, a trade secret is often the better choice.
Yes. The EU SME Fund (EUIPO) reimburses, among other things, 75% of EPO filing fees and 50% of the legal costs of preparing a European patent application – up to EUR 3,500 per company, as a voucher you must apply for before incurring the costs. Poland's SMART Path (Ścieżka SMART), part of the FENG program (European Funds for a Modern Economy), can fund up to 50% of the costs of protection, and of defending your rights against infringers – but only as a module of a larger R&D project (EUR 750,000 threshold). Note: the grants cover patent applications; software protected by copyright alone generates no fees to reimburse.