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Israeli Software Patents and US Patents

Many inventors and entrepreneurs file Israeli patents on software because of the commercial need to protect their intellectual property. Until recently, it has been more difficult to receive patents for software in light of the position of the Israeli Patent Authority, but the patent authority in Israel appears to be heading in the same direction as many leading countries in the world, including the USA. Even before the Israel patent office, the US patent office started the trend of implementing patent law to enable inventors to receive patents on inventions with software components, thus a number of judgments were passed in the US enabling patents to be granted on software. The US Patent Office has publicized guidelines on this subject.

In Israel, owing to the Patents Law, one characteristic of a successful patent application is that the application must be for a product or a process. Until recently it has been difficult to apply for a patent on inventions with software content, but due to this new trend and in light of a number of legal judgments a new position recently published, the Israeli Patent Authority has started a change in attitude to the advantage of those applying for patent in this field.

It is apparent that there is great need for increased protection for software inventions; hi-tech companies and entrepreneurs working in the field of software want to protect their efforts and enjoy the protection that a patent that grants them a monopoly to the invention.

In order to get a patent on an invention with a software component, the patent applicant must prove a number of features that will be checked by a patent examiner in Israel before the patent can be approved. It is advisable to consult with a patent attorney in this matter as he can check, describe and edit the application in accordance with the Patent Office’s requirements. A number of patent attorneys in Israel have broad knowledge in the field of software; many are software engineers in addition to being patent attorneys. This allows them great advantage in understanding the language and terms used in the field.

According to the Patent Registrar’s circular on January 12th, 2012, a circular was published, allowing for modification due to public comments. In the circular, draft guidelines were published by which the patent registrar considers the eligibility of patents in the field of software. The circular refers to Section 3 of the Patents Law. In Section 1 of the circular, the Patent Registrar notes as follows:

1.Section 3 of Patents Law

1.1.Section 3 details the conditions and the main essence that qualifies the invention for a patent, as below:

“An invention, whether a product or a process, which is new and useful, can be used in industry or agriculture, and which involves an inventive step, is a patentable invention”

1.2.Section 3 sets out for the examiner the need to confirm that the invention adheres to the following criteria:

1.2.1.The invention is a product or a process;

1.2.2.The invention is in a technological field ;

1.2.3.The invention is new;

1.2.4.The invention is useful;

1.2.5.The invention can be used in industry or agriculture;

1.2.6.The invention involves an inventive step.

So, for example, if the examiner finds an invention is not new, or if it involves no inventive step, the question of classifying it into the area of one type or another of technology is secondary.

Likewise, in section 7.2 of the circular for the public it is written:

“Identification of the invention being in the field of technology will be determined in accordance with the requirements that the invention being used, whether it is a product or a process, a concrete technological process occurs (as discussed in (Jerusalem) United Technologies Corporation vs. The Registrar of Patents, Designs and Trademarks District Court Decisions, volume 26 (8) 729).  A concrete technological process means the invention has an technical effect on a physical entity of any sort upon which the invention causes to happen or in the type of action that the product or process causes to happen (discussed by the Enlarged Board of Appeals of the European Patent Office, case G0003/08, and its ruling of May 12th, 2010). That is to say, a key test for this purpose is the identification of the existence of a concrete effect of the defendant’s product or process, or the outcomes of said process.

The circular should be read in full with its public comments, where the Registrar directs the trend and the conditions that allow and disallow patent eligibility in Israel. It is therefore advisable to consult a patent attorney before submitting a patent in order to check each and every case whether filing a patent application is worthwhile.
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