Over the years, it has been argued that due to the classification of software as "literary work" under the Israeli Copyright Law 2007-5768 and its preceding statutes, software is not patentable subject matter. On the other hand, many have advocated for the patentability of inventions that integrate computer systems and software. The purpose of the newly published guidelines is to clarify to the public the criteria used by IPO examiners, in light of these different approaches and the changing legal perceptions regarding this topic throughout the world. The new guidelines came into effect on March 15, 2012.
With regard to the interpretation of the phrase "in any technological domain", which is enumerated as a patent-eligible domain in section 3 of the Israeli Patent Law, the guidelines provide:
- An invention will be determined to be "in the technological domain" if, in the course of using the invention (whether process or a manufacture), a tangible technological process takes place. In this regard, a tangible process signifies that some physical property is evident in the object affected by the invention or in the nature of the activity executed by the process or manufacture.
- Discovery, scientific theory, mathematical formula, game instructions and thought processes, in and of themselves, are considered abstract ideas or non-technical processes, whether they are carried out manually or via computer.
- The guidelines set out parameters that illustrate how the IPO will conduct examinations of inventions that integrate computer software: (1) Is some physical quality manifested or modified, as a result of operating the claimed invention, beyond what normally occurs in computer-integrated systems? (2) Does the operation of the claimed invention make the computer work in a new manner, including, but not limited to, enhanced performance (such as speed, reliability or more efficient use of data storage space), or if it produces new inter-connections between the computer system's components, which did not previously exist? If any of these questions yield affirmative answers, then the invention is considered to be in the technological domain.
- The examined claim should be distinguished from cases where the invention is implemented through the use of a computer and the computer's operation adds nothing beyond the regular technical effect that results from running a program on a computer. These latter cases have no tangible technological character. This issue should be examined separately from the question of legally protecting computer code through which the program is run, given that computer code is an expression considered "literary work" under the Copyright Law.
- A claimed invention that uses a computer to perform a process that could otherwise be done without a computer, may be considered to have a tangible technological character under the guidelines. For instance, an effect beyond the obvious efficiency gained from the mere computerized automation of a process, suggests a reasonable basis to argue for the existence of a tangible technological character.