Paving the Way for Patenting of Computer Programs in Ukraine

by Artem Taranowski

Obstacles to patenting computer programs in Ukraine do exist. Nobody denies this. The issue is what are those and whether they are manageable or not.

Just for the sake of starting a discussion, I will try to outline some of them that seem to be the most important, from low-level to high-level, and consider some ways that seem to make it possible to drop the barriers.

As I wrote earlier, the Ukrainian Patent Office believes that computer programs are not inventions, it is impossible to protect computer programs through patents, patents on computer programs are not allowed, and computer programs have no patent protection in Ukraine.

First, the Ukrainian Patent Office does not regard computer programs per se as inventions because those lack a technical nature, are not directed to solving technical problems and accomplishing technical results, and are therefore beyond the technological area.

I’m not in a position now to discuss a technical nature of computer programs but it appears to be bizarre how in the world a computer program implementing asymptotically better sort algorithm or search algorithm (or both) unknown before could be not directed to solving a technical problem and accomplishing a technical result, and be beyond the technological area.

But foremost, the Ukrainian Patent Office has no notion of how computer programs should be examined for adherence to novelty, utility and inventive step criteria. Moreover, it seems to be the genuine cause why the Ukrainian Patent Office denies patentability of computer programs.

That is indeed a major problem and what exactly could be a solution here is unclear. And it appears to be the central problem of patent protection of computer programs.

The aforementioned problems are reflected in internal procedures of the Ukrainian Patent Office having placed computer programs outside the scope of patenting.

Further, the regulations do not recognise computer programs per se as inventions. Just like that. Out of the blue. Interestingly, the articles of the regulations before and after this particular one contain references to the provisions of the statute whereas this one does not.

Finally, the statute. Let us see... The statute does not exclude computer programs from patent protection.

In summary, there exist barriers at the levels of understanding of computer programs, technical matters of examining applications, internal procedures, and regulations, but there is no barrier at the statutory level.

Talking about dropping the barriers we need to take into account some specifics. The Ukrainian Patent Office is not a full-cycle patent office. Not yet. The Ukrainian Patent Office is just an expert institution examining applications while conducting formal and patentability expertise. It is the Ministry of Economic Development and Trade that shapes and implements public policy in the area of intellectual property.

With that in hand, the Ukrainian Patent Office should improve situation at the understanding and technical levels first. That said, the Ukrainian Patent Office will not be left alone with theses problems. The technical community would readily help to cope with those while the general public would definitely prevent the latter from turning the situation for its own benefit at the expense of public interest. What’s important is that the Ukrainian Patent Office should be success-oriented while finding out a solution of how computer programs applications could be examined instead of just stressing that the obstacles could not be overcome and that computer programs are not patentable.

The Ukrainian Patent Office should then amend its internal procedures.

Having that done, the Ministry of Economic Development and Trade could then easily make amendments at the level of regulations lifting thereby the last obstacle.

As we see, the obstacles to patenting computer programs are known and eliminating those is manageable. But it is definitely not doable until the Ukrainian Patent Office is willing or forced to do so.