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ARTICLE · 26 NOVEMBER 2021

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You Can't Patent Software, Right?! …Or Can You?

Smart & Biggar
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This is a common misconception.

CanadaIntellectual Property
Denis Keseris
Denis Keseris
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Is it true that software is not patentable?

This is a common misconception. While the actual lines of code are not patentable, the functional aspects of software can be patentable. In fact, in 2020, 63% of patents issued in the United States were for software-related inventions.

Then why do I keep hearing that software is not patentable?

Most jurisdictions place limits on patenting software inventions, and the guidance published by different patent offices around these limitations has not always been clear. Moreover, software patents are an area of patent law that is still in flux though eligibility requirements are becoming increasingly well-defined and harmonized. Many people also confuse the code, which cannot be protected by a patent, with the functional aspects of the software, which can be patentable.

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