Since James Watt had a patent specification for a steam engine accepted in 1769, technology has progressed at an incredible pace.

Today, the backbone of much of our technology lies in the digital realm. Intellectual property (IP) continues to be of immense value in many aspects of modern industry, providing protection for products, processes, and services that involve the intangible results of creativity, innovation and skill.

As such, IP – ie patents, trademarks, copyright, design and know-how – has become a widely recognised asset for companies. The value of IP extends not only to traditional companies but can potentially provide a valuable asset to companies engaged in digital innovation, an area in which Scottish-based companies have been particularly successful.

When the European Patent Convention first came into force in 1973, digital technology was nowhere near as commonplace as it is today – indeed, many of the current giants of the industry weren’t in existence.

As such, digital technologies and the existing IP system have traditionally had a somewhat uneasy relationship with many innovators in the digital realm justifiably being confused about the options available to them for protecting their IP. However, many forms of IP can be used as protection for digital innovations.

Patents can provide useful protection for technical concepts. Many computer implemented inventions have been successfully patented in a number of significant jurisdictions including the US, UK and Europe. Confusion arises because many jurisdictions exclude subject matter from patentability if it amounts to nothing more than a computer program as such and the criteria for patentability of computer implemented inventions vary between jurisdictions.

The European Patent Office (EPO) has a test in which claimed subject matter that is novel and inventive is potentially patentable if it has a technical character, even if the invention is computer implemented. A computer program itself can potentially be patented at the EPO if it is capable of bringing about, when running on a computer, a further technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run.

Example types of inventions that have been granted patent protection by the EPO include software for controlling an apparatus or machinery, software that processes data representing images or other physical entities, and software that improves the operation of hardware or achieves an increase in effective memory or speed.

Therefore, innovators are not necessarily unduly penalised by the patent system for using modern methods. If this was the case, then it may lead to a strange situation of an invention being potentially patentable if it was implemented purely using old fashioned mechanical methods but not if it was implemented using a modern reprogrammable system. 

As such, the approach taken by the EPO is arguably a sensible and pragmatic answer to this problem. However, since patents for software and computer implemented inventions remain an area that has a degree of additional uncertainty, good professional advice from a suitably qualified patent attorney specialising in this area is always recommended.

Copyright provides a degree of protection for computer software code. However, the protection afforded by copyright is generally not as strong as patent protection since copyright is infringed by direct copying (rather than independent creation), which can be difficult to prove. In addition, copyright protection applies to the code used to form the software, whereas patent protection can often be obtained for the fundamental new ideas and concepts that lie behind a new piece of software.

There are also various other forms of IP protection that could be of interest to digital industries. For example, visual aspects of digital products are often critical to their success. In many jurisdictions, such as the EU, it is possible to obtain a registration for new digital related designs such as logos, computer icons, typefaces, digital drawings and artwork, web pages and user interface designs, among others.  This affords exclusive rights in the relevant jurisdiction to products incorporating the design or which do not produce a different overall impression.

Trademark registration can often offer useful protection for names, logos, sounds and other means that distinguish a brand of software from those of competitors. Database rights and design rights for semiconductor topographies can also afford useful protection for the associated subject matter.

In summary, there are a number of mechanisms available to protect IP associated with digital innovation, it is up to the innovators to make sure that the results of their skill, investment and labour are protected.

This article was originally published in The Scotsman and can be viewed at www.scotsman.com/news/comment-when-you-write-great-software-don-t-forget-patenting-1-4096118.