Is software patentable in France?

The question of patent protection for software is answered in the French Patent Law (CPI) as well as in the European patent Convention (EPC) in an indirect way by legal considerations concerning computer programs.
In France as well as in Europe, the law says that “computer programs” are formally excluded from patentability. However this exclusion only applies if said computer programs are taken “as such”. This has been interpreted as allowing indirect patent protection for software included in so-called “computer implemented inventions”.

Conditions for patent protection

• 1. Technical character

A patentable “computer implemented invention”, being an “invention” must have a technical aspect.
Certain decisions of the Boards of appeal of the European Patent Office as well as the French patent Office (INPI) require that an “additional” technical effect be present, i.e. a technical effect going beyond the usual functioning of a computer.

In other recent decisions, the mere use of a computer or of internet is considered sufficient to justify the existence of a technical invention i.e. a technical solution of a technical problem.

This opens more possibilities of patent protection for software-related inventions. Nevertheless, any computer implemented invention must still be novel and inventive over the prior art, in order to be patentable.

• 2. Novelty and inventive step

Novelty and inventive step over the prior art are required for any patentable invention and therefore also for software-related inventions.
Software-related inventions, so called “computer implemented inventions”, are however specific in that they usually include a non-technical aspect, which is a pure software, as well as a technical aspect which may be a computer, internet or any other technical means.
Novelty and inventive step over the prior art must therefore be evidenced for an effective combination of both aspects, the technical part and the non-technical part of the invention.

The technical part of the invention should not be limited to mere instructions to a computer.
The original aspect of the invention should not be restricted to mere obvious programming instructions.
The non-technical part, i.e. the software aspect must effectively participate to the technical effect of the solution achieved by the invention. If this is not the case, this non-technical part shall not be taken into consideration when determining the inventive step, which usually will lead to a decision of non-patentability.

Some practical examples

The following claims may be accepted, if the patentability conditions are fulfilled:

• - claims relating to machines controlled by a computer program, to the extent that such claims relate to the technical characteristics of the machine.
• - claims relating to the software-controlled internal functioning of a known computer, if it produces a technical effect (such as expanding the virtual working memory).
• - claims relating to processes used for industrial purposes which include stages controlled by a computer program.
• - claims relating to a computer program comprising code instructions registered on a computer readable support and comprising programming means capable of generating certain steps which produce a specific technical effect, when the program is controlling a computer.

In a decision dated November 22 of 2019, the Paris Appeal Court admitted the patentability and the technical character of an IT method using a terminal for military operations, allowing communication between distant operators. The invention allowed namely for the first time the pilot of a military aircraft to globally visualize an entire battlefield situation.
The decision was confirmed on January 11 of 2023 by the Supreme Court (Cass. Com., 11 janv. 2023, pourvoi n° 20-10.935)).