Software Patent Strategy for SaaS Companies

Yes, under certain conditions. In Europe, computer programs 'as such' are not patentable, but software-implemented inventions producing a concrete technical effect can be patented. For example, an algorithm that optimises network resource usage, a data compression method, or a system that improves hardware performance. The key is demonstrating that the innovation solves a technical problem, not merely a business one.

In the US, after the Alice and Bilski decisions, pure software patents are difficult but not impossible — you need to demonstrate the invention is 'significantly more' than an abstract idea. In Europe, the focus is on 'technical effect': if your software produces a technical result beyond mere interaction with hardware, it is potentially patentable. Both systems exclude pure business methods.

The main alternative is trade secret protection under the EU Trade Secrets Directive (2016/943). This requires implementing reasonable confidentiality measures: NDA agreements, access controls, encryption, and documented internal policies. Unlike patents, trade secrets do not expire as long as confidentiality is maintained, and they do not require public disclosure.

This is a complex and evolving legal area. In the US, after Google v. Oracle, API use was considered 'fair use' in certain contexts. In Europe, the structure and organisation of APIs may be protected by copyright if sufficiently original. The underlying functionality is not protected by copyright, but potentially by patents if it produces technical effects.

ML models require a combined strategy: the trained model and its weights can be protected as trade secrets; the training method may be patentable if it produces a technical effect; training data can be protected as databases; and the code implementing the model is protected by copyright. We recommend an audit to determine the optimal combination.

In Spain, Article 97.4 of the Intellectual Property Act establishes that exploitation rights for software created by an employee in the course of their duties belong to the employer, unless otherwise agreed. However, we always recommend including explicit assignment clauses in employment contracts to avoid ambiguity, especially for patentable inventions.

Open source licences can significantly limit your ability to protect and monetise software. Copyleft licences (GPL, AGPL) may require you to publish your code if you distribute it or, in the case of AGPL, if you offer it as a service. Permissive licences (MIT, Apache) allow commercial use with fewer restrictions. It is essential to audit all dependencies in your stack.

A typical European patent application costs between €8,000 and €15,000 including prior art search, drafting, and filing. Examination and maintenance costs are additional. For startups, the total cost through to grant can be €15,000-€30,000 per patent. We recommend prioritising: one well-drafted patent on your core innovation is more valuable than multiple weak applications.

It is a comprehensive analysis of all your company's intellectual property assets: proprietary code, algorithms, data, trademarks, domains, developer contracts, third-party licences, and confidentiality policies. The result is a map of protectable assets, identified vulnerabilities, and a prioritised protection roadmap.

Patents and trademarks are territorial, so you need protection in each market. For the EU, a single European patent (EP) covers multiple countries. For the US, you need a separate USPTO application. Trade secrets are protected globally through contracts. We design strategies that prioritise markets according to your expansion plan and budget.

Yes, if your SaaS incorporates AI systems and is deployed or marketed in the EU. The AI Act classifies systems by risk level and requires technical documentation, human oversight, and conformity assessments for high-risk systems. Many SaaS products with AI features fall into limited risk (transparency) or high risk (full documentation).

Investors evaluate: clear ownership of all code (assignment contracts with all developers), copyright registrations, granted or pending patents, open source licence inventory, trade secret policies, and absence of IP conflicts. We prepare IP due diligence packages covering all these aspects.