The patentability of software and mathematical algorithms for computational electromagnetics

Abstract

In the US, software has been patentable subject matter for many years. Nevertheless, it was not uncommon to hear engineers, and even some patent attorneys, assert that software was not patentable. The patentability of mathematical algorithms in the US is not so clear cut, but changes in US patent law have expanded the scope of patentability for mathematical algorithms. Many types of mathematical algorithms that were previously not patentable subject matter are now patentable subject matter. The full impact of these changes is yet to be determined, but the trend is clearly in favor of the patentability of mathematical algorithms. In Europe, the expanding scope of patentability for software and mathematical algorithms is lagging the US to some extent. The patentability of software in Europe was somewhat uncertain. However, a decision by the Technical Board of Appeal (TBA) appears to have removed the uncertainty and clearly established that computer software is generally patentable subject matter in the European Patent Office (EPO). The patentability of a mathematical algorithm is still uncertain. Inventors wanting to obtain patent protection for their mathematical algorithms or computer software should not assume that such protection is unavailable or even that they know where the boundary lies. It is a mistake, and it can be a costly mistake, to presuppose that something is unpatentable simply because it is a mathematical algorithm.