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Olga Dolgikh

Head of Department / Patent Attorney/ Mechanics Engineer

17 November 2020

Software Patenting

In the modern era of automated technologies, we can't imagine a device without software. Every day, more and more products using software are developed, and the more their number is, the more their developers think about protecting their rights.

First, let us understand what the software is and how it is protected under the current law.

According to Article 1261 of the Civil Code of the Russian Federation (hereinafter the Civil Code), the term of software is used to refer to the computer program used in a computer system in an objective form of a set of data and commands intended for the functioning of the computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of the computer program and the audio-visual images generated by it. This article also states that copyrights for all types of computer programs, including operating systems and software packages that can be expressed in any language and in any form, including source code and object code, are protected in the same way as copyrights for works of literature. Thus, a computer program is a copyright-protected item protected as a literary work, that is, as text.

From the moment of its creation, there is an exclusive right to this item, which is valid everywhere and is not subject to official registration. Copyright is valid throughout the life of the author, who survived other co-authors, and 70 years, counting from January 1 of the year following the year of his death.

Notwithstanding that the copyright is not subject to binding registration, there is an opportunity to get a state registration certificate for a computer program at Rospatent. This certificate confirms authorship and exclusive right to the registered software.

The advantages of obtaining a certificate are as follows: the procedure takes no more than 2 months from the date of filing the required set of documents for registration with the Patent Office, i.e. it is the fastest in comparison with other types of registration of rights and the period of validity of rights is rather long.

However, there are also disadvantages: the certificate of authorship protects the software only from 100% copying and reproduction. That is, any person who wishes to use your software without your permission and payment of fees will be able to do so, provided the changes are made. There is another disadvantage as the minimal period of time to obtain the certificate is due to the fact that the software is not subject to verification or examination in substance, that is, no one checks the area of software application and its source code. The program is checked according to formal requirements and is registered under the responsibility of the applicant. In a best-case scenario, it is possible to check the trademarks of third parties contained in the software title.

Thus, the applicant is not protected from violation of third parties’ rights. He or she may simply not know that someone has already registered such a software. As a result, a complaint may be lodged by a third party and further legal action may be taken in court.

Since the program code is easy enough to change, which is confirmed by widespread and very frequent updates, modifications of existing programs, it becomes clear that the copyright certificate only formally confirms the rights, while the level of protection is low.

To protect a computer program properly, it must be patented as an invention. In spite of the fact that according to Article 1350 of the Civil Code of the Russian Federation, computer programs are not inventions, it is necessary to consider the program as a method which is a set of sequences, functions, algorithms, i.e. to prescribe not specific codes, but to patent its essence and meaning through algorithms.

As an example, let us give a formula for the invention of one of the patents, which in fact is a source code, but which is described in the form of a sequence of actions, algorithms.

A way to save the content of a web page containing static objects and dynamic objects, with the web page displayed in a browser running on an electronic device with built-in memory, the method is performed by an electronic device and includes:

  • Saving information about static objects in an archive file;
  • Saving information about dynamic objects in an archive file;

differing in what includes identification of at least one link between dynamic objects and static objects, presented as a link between them; saving information about this connection in an archive file; saving an archive file in memory.

The specified procedure for saving information about dynamic objects includes ordering arrays of data in JavaScript.

The above-mentioned saving of information about the specified connection includes:

  • Formation of a link tracker, which serves to bind static objects to the bound identifier of the hibernation mode, and formation of the table of information elements, which is responsible for binding the identifier of the static object and bound identifier of the hibernation mode, while the binding contains a unique record identifier;
  • Increase of a record, associated with dynamic objects in JavaScript data arrays, due to information about static object's hibernation identifier.

As we can see from the example above, the formula does not use any code. It is the sequence of actions and the algorithm itself that are patented. This approach to the computer program provides its widest and best quality protection.

It should be emphasized that it is very difficult to prove the violation of the rights of a patented method in this way.

In addition to the claims, it is mandatory to make a comprehensive description of the software product. It is necessary to specify the engineering test record, the architecture of the program, as well as to identify its components and provide flowcharts. There is a need to prove and demonstrate the possibility of achieving a set of essential features of the specified engineering test record and provide specific examples of method implementation.

It is worth noting that the procedure for obtaining a patent for the invention in terms of time is one and a half years and, of course, compared to the registration of the computer program, has an obvious disadvantage, but the exclusive rights obtained in the registration of the invention have clear advantages.

To conclude, our inventors often find it very difficult to describe their software as presented above, and they choose the simplest, fastest and cheapest way to protect themselves, which is a registration of a computer program as an object of copyright and obtaining a registration certificate.

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