Can you patent an algorithm?

Can you patent an algorithm? Insights from an Tech IP Consultant

The widespread belief that algorithms and software are unpatentable is a significant misunderstanding in the realm of intellectual property. This misconception often stems from a superficial interpretation of patent laws, which vary significantly across different jurisdictions.

In the U.S. and Europe, for instance, there has been a notable trend of granting patents for innovations that are fundamentally based on new algorithms or unique applications of existing ones. This trend highlights a critical aspect of intellectual property law: the ability to recognize and protect technological advancements that are not immediately apparent.

By overlooking the potential to patent algorithm-based innovations, many innovators miss out on securing valuable intellectual property rights that could offer significant commercial advantages.

Understanding Patents in Tech IP & Tech Innovation

Patents serve as a cornerstone for protecting technical innovation, yet the legal framework varies globally.

European patent law, for example, explicitly excludes categories like mathematical methods and computer programs from being considered inventions.

This has led to a widespread belief that algorithms, which are inherently mathematical, are unpatentable.

However, the reality is more complex. The legal system has seen thousands of patents granted for tech innovations based on algorithms, highlighting a significant gap between legal theory and practical application.

This discrepancy underscores the need for a deeper understanding of how tech innovations, particularly those involving algorithms, are treated under current patent laws.

The Patentability of Algorithm Based Tech Innovations

Distinguishing between an algorithm itself and its practical applications is crucial in understanding patentability. An algorithm in isolation may be too abstract for patenting, but its application in a practical, technical context can qualify for patent protection.

The nature of the application is key; for instance, using a new algorithm for non-technical purposes like document classification might not be patentable. In contrast, applying the same algorithm for a technical task such as machine fault diagnosis could be eligible for patent protection.

This distinction is vital in the realm of tech innovations, where the practical application of theoretical concepts often determines patent eligibility.

‘Novelty’ and ‘Inventive Step’ in Patenting an Algorithm

For an algorithm-based tech innovation to be patentable, it must meet the criteria of ‘novelty’ and ‘inventive step’ (or non-obviousness).

These criteria are universal across all patent fields but take on unique dimensions in the context of tech innovations. The novelty aspect requires that the algorithm or its application must not be something already known.

The inventive step means that the algorithm must represent a non-obvious improvement over existing technology or methods. These requirements ensure that only truly innovative and advanced tech innovations receive patent protection.

Real-World Examples of Patented Algorithms

Historically, the patenting of algorithms and software-based tech innovations is not new.

As early as 1986, the Appeal Board of the European Patent Office confirmed that even where the idea underlying an invention is a mathematical method, a patent can be granted for a technical process that makes use of the method. The case in question related to a new algorithm for image processing.

Around the same time, Koch & Sterzel secured a patent in Europe (and successfully defended the patent against oppositions by Siemens and Philips) for a new X-ray apparatus. The innovation lay solely in the algorithm that controlled the apparatus to ensure optimum exposure combined with adequate protection against overloading of the X-ray tubes.

The two examples above illustrate that algorithms can be patented when they are used for a specific technical purpose.

Other examples of technical purposes that have supported the patentability of an algorithm include:

• Digital image or video enhancement or analysis, e.g. detecting persons in a digital image
• Speech recognition, e.g. mapping a speech input to a text output
• Determining the energy expenditure of a subject by processing data obtained from physiological sensors
• Deriving the body temperature of a subject from data obtained from an ear temperature detector
• Providing a genotype estimate based on an analysis of DNA samples, as well as providing a confidence interval for this estimate so as to quantify its reliability
• Providing a medical diagnosis by an automated system processing physiological measurements

The Scope of Algorithm Patents in Medtech and MedTech Innovation

In the medtech field, the potential for patenting algorithms is particularly notable.

Numerous instances exist where algorithms have been successfully patented, including applications in digital image analysis, speech recognition, and automated medical diagnosis systems.

These examples not only highlight the potential for algorithms in medtech to attract patent protection but also underscore the growing importance of tech innovations in advancing medical technology.

Don’t Overlook Algorithm Intellectual Property

The importance of not prematurely dismissing the possibility of securing patent protection for algorithm-based tech innovations cannot be overstated.

While not every algorithm will form the basis of a patentable invention, many will, particularly those with practical applications in technology and medtech. Proactively exploring patent protection before public disclosure is crucial for securing the commercially valuable protection that a patent can offer.

This approach is essential for innovators and companies looking to capitalize on their tech innovations and secure a competitive edge in the rapidly evolving technological landscape.