Can you patent software?
The short answer is yes; it’s possible to have your software patented by the USPTO.
With over four million developers in the United States alone, it’s not surprising that the market for conventional, independently developed software has grown significantly in the last decade. With the bulk of new software geared toward enterprise use, followed by software for e-commerce applications and business automation, the software has become deeply woven into everything we do online (and offline).
Of course, software developers who’ve devoted hundreds (if not thousands) of hours of work into their work will want to know: can you patent software to protect it from people who may want to copy it and sell it for a profit? With the software market reaching $390 billion just a few years ago, there’s a good reason why software developers and startups should be thinking about software patents.
Don’t be deterred by those who routinely trawl the new archives for bits that state that large companies failed to get approved for a software patent. With the help of a knowledgeable software patent attorney, you stand a greater chance of getting approved for a software patent. The patent application process is complicated at best, with many moving parts that require the expertise of a patent lawyer with a strong track record of winning patent applications for their clients.
Previously, patentability analysis was more straightforward before subsequent lower court opinions and Supreme Court rulings made the latter more ambiguous.
Software that executes computing tasks unorthodoxly or increases “computer functionality” (i.e., decreases computing resources needed or increases processing speeds) may be patentable.
The answer to the question “Can you patent software?” is also conditional on the patent’s wording. We must note how the software works. Comparing a self-referential table and software tasked with archiving digital photos, the first method is more likely to be granted a patent. At the same time, the second is more likely to be rejected.
To put it in words more familiar to startups, your invention has a better chance of being granted if it addresses a specific customer problem. But if your patent tries to claim the advantages your customers will gain from using your software, it’s probably not patentable.
In the US, patent protection is still available for innovations based on software. However, new applications must rigorously meet specific technical standards to be patent eligible.
Technically speaking, your software may be patentable if either (1) it adds new capabilities to computers (such as performing previously impossible computations, completing processes more quickly, or using fewer resources) or (2) it provides an unconventional solution to a problem in computers.
In addition, your program’s patentability may hinge on how closely you focus on the technical details of your unique software solution as you develop it. Increase your chances of being granted a patent by detailing the technical difficulties encountered in your invention and then claiming credit for developing a solution. Your path to patentability will be far more challenging if you try to claim every possible solution to a problem or every action a user can take because of using your software.
Criteria for Software Patentability
To be granted a patent in the US under the existing patentability regime, software patent applications must satisfy one of two criteria.
- There needs to be more to the invention than just an “abstract idea” or
- If the innovation is focused on an “abstract idea,” then said innovation must be able to “transform” said idea into something patented.
The criteria for an “abstract idea” states that a software-based invention can qualify for a patent if it “improves computer functionality” in some way.
For example, it may open possibilities for computations that computers could not handle before or accelerate preexisting computational procedures. It may also reduce the hardware and software needed to do a job.
Even though the software does not typically “improve computer functionality,” it may nevertheless be patentable if one or more of the following conditions is met (together referred to as the “transformation” requirement):
- Said innovation must be necessarily based on computer technology.”
- The innovation uses “unconventional” parts to fix it or uses “conventional” parts in an “unconventional” arrangement;
- The scope of the patent claims does not exhaust all possible uses of the concept.
Software Cases in Recent History
A Supreme Court ruling in Alice v. CLS Bank, 134 S. Ct. 2347 (2014) recently caused a muddle over whether software can be patented. The Supreme Court of the United States laid down a two-part test to determine the patentability of software in this decision.
As a first rule, a computer-related patent application cannot focus on an “abstract idea.” However, if it is, the patent application must “transform” the claimed invention into one a patent can protect.
However, the Supreme Court’s explanation of the rule offers few specificities regarding what constitutes an “abstract idea” or how much additional work is required to “transform” an abstract idea into a patentable invention.
The usual rule is that if the invention is geared toward making computers more practical, it qualifies as patentable, as opposed to being an “abstract idea.”
Microsoft v. Enfish established that self-referential tables used in databases were patentable because they “improve[d] the way a computer stores and retrieves data in memory.” (Contrary to the opposing view, which posits that an “abstract idea” for a logical table can be used to store, organize, and retrieve information from one’s memory).
The patent specification “disparage[d] conventional data structures” and described the claimed invention convinced the Enfish court that the innovation enhanced computer capabilities.
Suppose a patent application is focused on a general process, and computers are just called upon as a tool to execute the process. In that case, the application is considered an “abstract idea.”
According to the courts, a generic procedure cannot be patented by merely having a computer carry it out. Furthermore, several fundamental economic and customary business processes and algorithms, including those implemented on “generic computers,” are also deemed abstract ideas.
The “improving computer functionality” guideline seems useful at first glance. However, expert programmers and patent lawyers saw right away that it wasn’t compatible with how modern software works and wouldn’t be of any use in analyzing the real world.
How the patent application is worded often determines the outcome of the “abstract idea” inquiry. If you use vague language when describing and claiming your invention, it will most likely be labeled as an “abstract idea.” You can increase the likelihood that your invention is not directed at an abstract idea by providing a highly technical description and claims that highlight the technical obstacles that your invention solves.
Learn About Software Patentability and Software Patent Applications Today
Tatonetti IP has helped countless clients win their patent applications for various inventions. We are intellectual property attorneys specializing in patents, copyrights, and trademarks.
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