A question of whether the software can be protected by the patent is far more complex. First of all, what needs to be said is that a software ‘as such’ cannot be protected by patent in the EU and the majority of other countries (with the USA as an exception). The Law on patents even contains an explicit provision highlighting that fact (that computer programs, in accordance with the law, are not considered as inventions). Why is that? Every computer program is a mathematical algorithm. The Law on patents prescribes that mathematical methods are not inventions, and accordingly, cannot be protected as a patent. On the contrary, no one else could use such mathematical formulas within the period of patent duration (20 years from the date of submitting the patent application).
However, the software may produce some kind of technical effect which is industrially applicable. When protected by the patent, it is not the software itself being protected, but in most cases the device controlled by the software. Therefore, the software is a part of a system, controls that system and enables the device to be functional in a new, different, innovative way. It is not enough to establish a simple relation between the software and hardware – there has to be a specific technical effect as a result of a software presence.
Related to the above-mentioned, it is not enough for the software to solely automatize the existing solutions. What is necessary is the existence of a new effect, not a simple automatization. Essentially, the patent protects the software indirectly, through the system which has that software as its integral part.
Those are the so-called software-implemented inventions, which:
- Are patentable if they belong to the technical science area,
- Contain 3 criteria of patentability: novelty, inventive step, and industrial application.
- Such inventions are treated as all the other inventions, but with a strong focus on the ability to be integrated into the technical science area and have a technical essence. 
Due to this complexity, protection of the software as a patent is commonly considered as impossible, so the exclusive copyright protection is being excluded as ‘crystal clear’. When added the fact that the registration of a patent includes a complex procedure of composing the patent application and paying the fees, it is understandable why the software authors mostly settle for copyright protection. Especially, when speaking about the patent application for software, advanced writing skill is needed given that the patent application must not show the intention of protecting the software ‘as is’. These applications can be extremely complicated, especially when they include defining the several requests (for the system, the method, the software, the signal, etc.).
A few examples from the practice:
- Travel and ID documents reader,
- Procedure for the certification of electronic mail including the reliable digital signature being performed by the telecommunication operator,
- Procedure and method of coding application on small data carriers,
- Systems and procedures for securing the multi-factor authentication based on the transaction chain,
- System and procedure for the use of security programs for digital marketing.
The exception to the listed rules exists in a few legal systems in the world, out of which is the most important patent law system – the USA legal system, because of its commercial significance. However, given that this topic calls for the entire separate text, we will in this blog post just generally state that the USA legal system had different periods in its evolution which were more or less open to the patenting of a software ‘as is’ so that today it is possible to de facto patent the software ‘as is’ in the USA, with, of course, multiple other preconditions which previously need to be fulfilled.
Therefore, whereas the copyright protection of software exists from the moment of creating software in a certain form (source, object code, etc.) which represents the work of authorship, software ‘as is’ is not patentable in Serbia. However, those are not the only differences between patent and copyright protection. The differences in obtaining the right, duration, territorial scope, etc. have reflected the struggle for the dual-protection treatment of software, which does not abate, but becomes a more intense and interesting issue with the development of the industry.