Far away from being a hashtag trend, the FinTech industry is changing the global landscape by creating new and exciting technological developments that are transforming the traditional banking industry.
From apps that allow an upgrade in the consumer experience to new forms of economy and cryptocurrencies, the interaction between technology and finance is growing at an accelerating pace. The so-called FinTech revolution started mainly in the developed countries; nevertheless, and due to the challenges that developing countries impose to the traditional financial sector, the implementation of FinTech in growing economies was an absolute success.
In Colombia, for example, we can name many of these companies whose developments have place them as top players in the market, to list a few, we can talk about MesFix, PayU and Tpaga just as an example of successful ventures. Still, all these ventures have one thing in common, they all use software.
Considering the crucial role of software and its implications on the business, there is a significant need to protect the derived Intellectual Property of the companies.
In this sense, many Patent Offices around the world have changed the traditional perspective on the protection of computer programs and derived works, including the Colombian Superintendecy of Industry and Commerce (SIC), entity in charge of granting patents in the country.
The traditional vision on software protection in Colombia
Under the applicable law, software is perceived as a literary work, therefore, protection is granted via copyright.
The same does not require registration, it arises with the creation of the work and its reproduction in a tangible form, the term of protection is the life of the author plus 70 years. Registration is desired for enforcement and for evidentiary purposes.
Although copyright presents an effective protection against unfair appropriation, and has a long term of duration, it only focuses on the written content of the source code, leaving the functionality of the computer program aside.
Given the advantages provided by the functionality of the software and the related infrastructure it entails, copyright is now sharing its position with other strong IP right.
Protection of computer implemented inventions under patent law
In Colombia, as in many other jurisdictions, software is excluded from being patentable due to the fact that it is protected through copyright, possibly because it was initially considered as a mere programming language.
In view of the fast-evolving technologies in the field, and also in an attempt to encourage and stimulate innovation, the Colombian Patent Office aligned in 2012 with the rest of the world allowing software-based inventions to be eligible for patent protection.
The invention must comply with the essential legal requirements, which are novelty (not being previously disclosed), having an inventive step (not being obvious for a person in the field of technology) and having an industrial applicability (being able to have a practical use, or capable of some kind of industrial application).
Moreover, for computer implemented inventions there is also the need for them to interact with a specific hardware, to solve a technical problem and to be directed to a product or a process.
Globally, the leaders in patenting software related to FinTech are Bank of America, MasterCard and Amazon, to mention a few.
The hurdles of protecting software patents are given by the exclusions set on the patent law, which refer to software as such, mathematical methods and forms of presenting the information. It is also worth mentioning that in Colombia there is no such thing as business methods patents or use patents.
Nevertheless, there has been a significant increase in the recent filing of computer implemented inventions in our country. The efforts for protecting innovation in the FinTech industry are gladly welcomed. Allowing patent protection is one of the first steps towards a more modernized financial industry in Colombia, and also represents an attempt to attract more foreign investment into new local ventures fostering an entrepreneurial environment.
Senior Associate Patent Department – Lloreda Camacho Abogado (Bogota, Colombia)
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