Software and Business Method Patenting: Is It Possible in Ukraine?

A common belief among IT professionals is: “My code is protected by copyright, and that is enough.” This is true, but only partially. Copyright indeed protects your code as a text, shielding it from direct copying. However, it is completely powerless if a competitor takes your unique idea or method and implements it using their own original code.

It is precisely for protecting unique functionality, rather than just its form of expression, that a patent is sometimes needed. In this article, we will analyze when software can be patented in Ukraine, why such protection is superior to copyright, and how to do it correctly.

Section 1. When can a program be patented?

In Ukrainian, as well as in European patent law, a general rule applies: computer programs as such are excluded from the list of patentable objects. This means you cannot go to the patent office and say, “Here is my main.js file, I want a patent for it.” Such an application will be rejected because the code itself, as we already know, is protected by copyright as a literary work. However, this rule has a very important exception that opens the door to patenting in the IT sector.

1.1. The main condition: having a technical character

The exception is as follows: a program can be patented if it is part of an invention that has a technical character. This means your software must solve a specific technical problem and lead to a specific, tangible technical result, going beyond mere information processing.

What is “technical character”?

• Interaction with the physical world: the simplest example is when your program controls a physical process. For example, software controlling a 3D printer, an automotive braking system (ABS), or an industrial robot in a factory. Here, the connection to technology is obvious.
• Impact on internal computer processes: even if your program does not go beyond the computer, it can have a technical character if it improves its operation. For example, this could be a new, more efficient data compression method that saves disk space, or a new encryption method that enhances security.
• Data processing with a technical result: this applies to programs that process specific data, such as digital images, audio, or video signals. For example, an algorithm that allows removing noise from a digital photo or recognizing objects in a medical scan.

What does NOT have a technical character? Programs that simply automate business processes (accounting), implement game rules, teaching methods, or provide content without solving a technical task are generally not considered to have a technical character and cannot be patented.

1.2. It is not the code that is patented, but the algorithm or method itself

This is a fundamental difference between patent protection and copyright protection. A patent protects not how it is written, but what is done. The patent office is completely uninterested in which programming language you used — Python, C++, or Rust. The object of patenting is not the code listing itself, but the method, process, or system implemented using this code.

That is why patenting an algorithm is a process of describing the functional essence of your development. In a patent application, you will describe not lines of code, but the sequence of steps (flowchart) that your program performs to achieve that technical result.

• Example: imagine you have developed a new way of sorting large arrays of data that works significantly faster than existing ones.
  • Copyright will protect your specific super_sort.py file. No one will be able to copy it.
  • A patent will protect the method of this sorting itself. And it does not matter if a competitor implements it in Python, Java, or any other language. If they use the same sequence of steps you described in your patent claims, they will be infringing on your rights.

Thus, a patent provides much broader and more powerful protection, blocking not a specific implementation, but the functional idea itself.

1.3. Examples of software that can be patented

To better understand what can receive patent protection, let’s look at a few specific examples from various IT fields.

• Data processing: algorithms for face or fingerprint recognition; video compression methods without quality loss; software for analyzing medical images (MRI, CT) to detect pathologies.
• Security: new methods of data encryption and decryption; systems for detecting viral attacks based on analyzing atypical network behavior.
• Machine learning and AI: a new unique neural network architecture designed to solve a specific technical task (e.g., for controlling an autonomous vehicle).
• Telecommunications: a new way of transmitting data in mobile networks that allows reducing signal latency.
• User interfaces (UI/UX): in some cases, you can patent a new, non-obvious way of user interaction with a device. For example, Apple’s famous “Slide-to-Unlock” patent.

As we can see, a software patent is quite real, but only when your development goes beyond simple automation and offers a new technical solution. Competent application drafting, with the right emphasis on the technical character of the invention, is a key task that specialized IT lawyers help with.

Section 2. The problem of patenting business methods

“I came up with a unique business model, how do I protect it?” is one of the most frequent questions from startups and entrepreneurs. The desire to get a monopoly on a brilliant earning idea is completely natural. However, as with patenting “pure” ideas, there are significant legal obstacles here. Patent law is designed to protect technologies, not ways of doing business. But, as with any rule, there are exceptions and tricks.

2.1. Why a “pure” business idea cannot be patented

The legislation of Ukraine, like most European countries, explicitly excludes “systems, rules, and methods of conducting business” from the list of objects that can be recognized as inventions.

Why is this so?

• Lack of technical character: a business model itself is an abstract concept, an organizational process. It does not solve a technical problem. For example, the idea of “selling coffee by subscription” or “creating a marketplace for finding tutors” are great business ideas, but they do not contain a shred of technology.
• Risk of market monopolization: if it were possible to patent business models, it would lead to an absurd situation. One company could patent “selling goods through an online store” or “providing taxi services through a mobile app,” which would completely block the development of entire sectors of the economy.

Examples of “pure” business methods that will be denied a patent:

• A new way of organizing an auction.
• A loyalty system for customers with cumulative bonuses.
• A franchising model for a coffee shop chain.
• A recruitment method.

All these ideas, although they may be innovative from a business perspective, are not patentable in their “pure” form.

2.2. How to “package” a business method into a technical solution

But all is not hopeless. If you cannot patent the business model itself, you can try to obtain a patent for a business model, or more precisely, for a technical tool (system, method) that implements this model and meets patentability criteria.

Your task is to “wrap” your business idea in a unique technological “wrapper”.

• Shift the focus from “WHAT” to “HOW”. Instead of patenting the idea of an “online auction,” you can patent a “new method of data processing and transmission for conducting online auctions in real-time, which allows reducing signal latency by 50% thanks to a unique XYZ protocol.”
• Find a technical problem. Think about what technical problem is solved by your business idea and focus on its solution. For example, Amazon’s famous “1-Click” patent was not issued for the business idea of “simplifying purchases,” but for a technical method that allowed the server to process orders without requiring the customer to re-enter data stored in cookies.

Example of “packaging”:

• Business idea: “a loyalty system where the customer receives personalized discounts based on their previous purchases.” (Not patentable).
• Technical solution: “a system and method for dynamic real-time pricing, including a server that uses a neural network to analyze user transaction history, predict future behavior, and generate a unique promo code transmitted to the user’s mobile device.” (Can be patented if this method is new and non-obvious).

Thus, you protect not the business model itself, but the unique technology underlying it. And although competitors will be able to implement a similar business model, they will not be able to use your technology, which will give you a significant competitive advantage. More details on how idea protection works in business can be found in our article “How to patent an idea (and is it even possible)?“.

Section 3. The process and benefits of software patenting

So, you have analyzed your development and concluded that it has a technical character and can qualify for patent protection. That’s great! Now it is important to understand how to properly approach the registration process and what real benefit it will bring to your business, beyond just a “piece of paper in a frame.”

3.1. How to properly draft a patent application

The process of filing a patent application for software has its specifics. The main task is to disclose the technical essence of your invention as clearly and convincingly as possible so that the patent office examiner has no doubts about its patentability. A simple description of the program’s functions will not be enough.

Key elements to emphasize in the description and claims of the invention:

• Description of the technical problem: start with the specific technical problem your program solves (e.g., “the problem of low data transmission speed in congested networks” or “the problem of high power consumption of mobile devices when processing graphics”).
• Detailed description of the algorithm: provide a detailed flowchart or step-by-step description of the algorithm implemented by your program. Describe not the code, but the logic of actions performed to achieve the result.
• Emphasis on the technical result: clearly state what technical result is achieved thanks to your method (e.g., “increasing data transmission speed by 30%,” “reducing power consumption by 15%,” “increasing object recognition accuracy to 99%”).
• Interaction of components: if your invention is a system, describe how its components interact (e.g., “the server receives data from the mobile device, processes it using a special module, and sends the result back”).

Competent application drafting is an art that requires experience. To understand how to patent a program and go through all stages, from search to obtaining a patent, we recommend reading our general guide: “What is a patent and how to get it in Ukraine: a complete guide from A to Z“. This will give you a complete picture of the basic patenting procedure.

3.2. Why do you need a patent if you have copyright?

This is a key question that every IT entrepreneur asks themselves. If my code is already protected automatically, why spend time and money on a complex patenting procedure? The answer lies in the fundamentally different level and nature of protection.

The main advantage of a patent is that it gives you a real monopoly on functionality. This is an extremely powerful tool for a startup, allowing you to:

• Protect against “reverse engineering”: competitors will not be able to simply study how your product works and recreate its functionality by other means.
• Attract investment: for venture investors, having a patent for a key technology is a huge plus, confirming the uniqueness and security of the product.
• Sell licenses: you can earn money by granting other companies the right (license) to use your patented technology.
• Increase company capitalization: a patent is a valuable intangible asset that has its own value and increases the overall valuation of your business.

Thus, copyright is your basic shield, and a patent is your exclusive sword, which gives you the right to attack and dominate the market.

Conclusions

So, the answer to the question “can a program be patented?” is yes, but with important nuances. Software patenting is possible, but only when your development goes beyond simple automation and carries a unique technical solution that can be described as a method, process, or system. This is a complex but powerful tool that provides much stronger protection than basic copyright.

• Key idea: copyright protects the “body” of your product (code), and a patent protects its “soul” (unique functionality).
• Consultation with an IT lawyer is a mandatory step. The field of software patenting is one of the most complex. It is extremely difficult to independently assess the patentability of your algorithm and correctly draft an application. Therefore, before making any decisions, a consultation with a specialized expert is absolutely necessary. An experienced IT patent lawyer will help analyze your product, assess the chances of success, and develop an optimal protection strategy that will turn your technology into a valuable business asset.