By Iain Russell, Patent Attorney and Director at Russell IP (BSc, CPA, EPA, FRSA – 20 years’ experience in computer-implemented inventions and music technology) and member of the Computer Technology Committee (CTC) of the Chartered Institute of Patent Attorneys.
Can You Patent Software? Iain Russell Writes For SCL On Five Software Patent Myths
Published: October 2026 | Last updated: October 2026
Can you patent software? The belief that you cannot is the software patent myth Russell IP founder Iain Russell encounters most often, and the first of five he addresses in a new article for the Society for Computers and Law (SCL), So, can you patent software? And other myths about software patents, published on 28 September 2026.
The article suggests where each myth comes from and then sets out the reality, including what the Supreme Court’s decision in Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks [2026] UKSC 3 (judgment handed down on 11 February 2026) has changed for UK applicants. This post summarises the five myths and links to the full article on the SCL website.
This article is a general summary of Iain Russell’s SCL article on software patents. It is not legal advice. Every invention and patent strategy is different. If you need advice on your specific situation, please contact Russell IP to discuss your circumstances.
Contents
- What does the SCL article say about software patents?
- The five myths, in brief
- What does this mean for software businesses?
- Frequently Asked Questions
What Does The SCL Article Say About Software Patents?
The article’s central point is that software-based inventions can be patented in the UK and Europe. Often known as computer-implemented inventions (CIIs), they are patentable where, in the article’s shorthand, they solve a technical problem in a novel and non-obvious technical manner. The article describes this as a simplification and acknowledges a large grey area.
On the UK position, the article records that the Supreme Court found the approach in Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371 to be incorrect and overly strict, and decided that UK law and practice should align more closely with the European position. It also observes that the UK Intellectual Property Office (IPO) has generally moved from not searching inventions it considered non-technical to searching them, although objections based on non-technical subject matter are still being raised.
The Five Myths, In Brief
Myth 1: “You can’t patent software.”
UK and European legislation excludes programs for computers only “as such”, so the real question is whether the invention is technical. Iain suggests equating “technical” with computer science or computer engineering: reduced latency, more efficient hardware usage, or greater computational accuracy are more likely to be considered technical than commercial or aesthetic benefits.
Myth 2: “Copyright protects software, so you don’t need to think about patents.”
Copyright covers the code and certain creative works, not the underlying functionality, and infringing it requires copying. Patent infringement does not.
Myth 3: “There’s no point in a software patent if we can’t afford to enforce it.”
The article points to the Patent Box (at a very general level, an effective 10% corporation tax rate on profits from a patented invention, against the 25% main rate) and to the marketing and deterrent effect of “patent pending” or “patented”.
Myth 4: “I’d have to disclose the underlying code.”
Source code is almost never required, need not even have been written at filing, and flowcharts and block diagrams are usually sufficient. Code in a published application is also visible to competitors. See our guide to software patent drawings for more on this.
Myth 5: “The product is selling well, so now I should think about patenting.”
Most patent systems apply an “absolute novelty” standard, grace periods are limited and far from universal, and any non-confidential disclosure before filing can count as prior art.
What Does This Mean For Software Businesses?
The practical takeaway is to get a specialist view on patentability early, and in any event before any non-confidential disclosure of how your software works, rather than ruling out patent protection because of one of these myths.
The article is equally clear about what has not changed. Software patentability remains a grey area, outcomes can be difficult to predict even for an experienced practitioner, and the article describes the IPO’s application of Emotional Perception as still in its early days. For the approach examiners have been instructed to apply, see our post on the IPO practice notice following Emotional Perception.
Software patents are a specialist field, and the article closes by noting that many experienced patent attorneys do not advise on them. Russell IP specialises in computer-implemented inventions, and Iain has spent more than twenty years drafting and prosecuting software patent applications. For a view on whether your software could be patented, get in touch with Russell IP.
We were pleased to write for SCL, and we will continue to monitor how the IPO applies Emotional Perception in practice.
Frequently Asked Questions About Software Patents
Can you patent software in the UK?
Yes, in appropriate cases. The SCL article explains that UK and European legislation excludes programs for computers only “as such”, and that software-based inventions can be patented where they solve a technical problem in a novel and non-obvious technical manner. Each invention needs individual assessment.
Can you patent software without disclosing the source code?
Usually, yes. The article explains that source code is almost never required, that it need not have been written at filing, and that flowcharts and block diagrams are usually sufficient.
What did Emotional Perception change for software patents in the UK?
According to the article, the Supreme Court found the Aerotel approach to be incorrect and overly strict, and decided that UK law and practice should align more closely with the European position. For more detail, see our post on the IPO practice notice following Emotional Perception.
Can Russell IP help with software patents?
Yes. Russell IP specialises in computer-implemented inventions, and Iain Russell, the author of the SCL article, has spent more than twenty years drafting and prosecuting software patent applications. Get in touch with Russell IP for a free, no-obligation discussion.
Disclaimer: This article is general information, not legal advice. For tailored guidance, please contact Russell IP.
