How to Patent Software

You can patent software inventions by solving a particular problem. However, you must have a technical problem to qualify for a patent. Software patents often draw more controversy than other fields. Inventors have not always been as lucky as they should be when trying to secure protection for their work. Here are some guidelines for applying for a software patent:

Abstract idea

There are several factors that need to be considered in patenting software. First of all, the concept itself is abstract. The claims are not directed to any specific implementation of a specific computer program or hardware feature. The claims must recite elements that transform the abstract idea into an eligible invention. The Supreme Court provided limited guidance on what constitutes an “abstract idea” and how much detail should be added to the claim.

Another problem with Alice is that there is no single definition of an “abstract idea” and that the term itself is vague. As such, patentability is a tricky issue. The Supreme Court has ruled that “abstract idea” means “any invention that takes an abstract idea and makes it work on a computer.”

The patentability of software hinges on whether or not the concept is new. Certain methods of human activity and economic principles are abstract ideas. Furthermore, mathematical relationships and formulas are abstract ideas as well. While simple recitation of an abstract idea does not make it eligible for patent protection, a detailed description of the invention is necessary. In general, software is patentable. The patent claims for software should be specific and detailed enough to allow for an adequate amount of protection.

The Federal Circuit has applied this “abstract idea” standard more than a hundred times since the original ruling. Initially, this standard applied only to financial transactions and computer-implemented business methods, but has expanded its scope. It now includes such concepts as network-controlled electric car charging stations and garage door openers. The reasoning behind the re-hearing is that abstract ideas can be patented in this context.

Business method

A business method for patenting software is a subset of a utility-patent application. A detailed description of the method is included in the utility patent application. A business method patent must be useful to the public and provide value. This method can be licensed to other companies to make money, or it can be used to block competitors. There are many requirements for a business method patent application. Here are some tips for making an application:

The first step is to clearly identify the real-world value of the business method. This step is crucial. The business method description must include a generalized description of the method itself, a flow chart or diagram, or some other means of explaining how the method works. For example, if the method involves the configuration of a central computer, a detailed description of how the computer can be configured is required. Typically, business methods can be described from more than one viewpoint, so make sure you include as much technical information as possible.

Once the US courts grant a business method patent, the patent owner may challenge it. A challenger must show that a business method involves a “novel legal question” or that it is not intended to prevent other businesses from using the technology. If a business shows its use of the method publicly, it may be infringing on the patent. Consequently, a patent owner may be able to seek an injunction against the infringer.

Non-technical process

In the United States, software patents are available, but not all inventions qualify. The USPTO does not like attempts to create monopolies around software, but software patents can be used as long as the invention does not have an industry-wide monopoly. Software patents require strategic planning to ensure that they do not hinder the creation of new products. The process to patent software involves a number of steps, from strategic development to the preparation of the patent application.

The process begins by determining whether the claimed invention is directed toward an abstract idea. Examples of abstract ideas are fundamental economic practices, methods of organizing human activities, mathematical ideas, and ideas themselves. Most business method software inventions fall into this category. The second step examines whether the claimed invention limits implementation of an abstract idea using a specific technology, or if it is a technical improvement on another technology. The third step determines whether the invention enhances the function of the computer.

There are also some exceptions to this rule. Software that controls a pump, for example, may be patentable even if it contains no unconventional elements. In one recent case, a patent court held that a patent for filtering internet content was valid despite the fact that the traditional method was to install the filtering software onto the end-user’s terminal. The patentees sought to patent a remote filtering tool that could be installed without installing the software onto the end-user’s device.

Concrete or tangible components

In order for a method to be patentable, it must be novel and invented by humans. Abstract ideas and laws of nature are not deemed patentable. The method must also be useful to the public. Any functional purpose will suffice for usefulness, and any tangible result is useful. Therefore, software may be patented. The Federal Circuit has ruled that tangible or concrete components of software can be patentable.

The Federal Circuit, the lower court of appeals, has now reviewed Bilski to clarify the test for patent eligibility. While the Supreme Court was not reviving the State Street Bank test in Bilski v. Kappos, the Federal Circuit has made a distinction between tangible and concrete components of software. In State Street, the method involved the transformation of data into a share price. The abstract idea of this process was that a mathematical calculation was performed to produce a useful, concrete, and tangible result. In Alappat, the abstract idea of a program was a machine, a process, or a tool that produced a useful, tangible result.

Abstract idea in a patent application

The federal circuit and Supreme Court have been unable to resolve the long-standing issue of what constitutes an “abstract idea,” leaving the term vague. In the Alice en banc rehearing, the Court will attempt to provide more clarity on the definition of an “abstract idea.” The decision will likely affect patent prosecutors, litigators, and companies wishing to protect business methods. Until a clear definition is provided, it is impossible to determine whether an idea is “abstract” or “functional” in a patent application.

If you are worried that your idea isn’t patentable, there are some escape hatches you can use to protect your invention. Abstract ideas are the product of a mental process performed in the human mind. These mental processes include observation, evaluation, judgment, and opinion. In patent law, these concepts are referred to as mental processes. In an abstract idea patent application, it is necessary to prove that the invention is not merely a mental process; it must be based on “reasonable” use and application in the field.

The patent abstract should focus on the invention disclosed in the patent application. It should not compare other inventions or comment on their marketability. Instead, it should highlight the innovation’s functionality and originality. The USPTO Patent Full-Text and Image Database is a good place to find examples of these patents. If you have a question, visit UpCounsel’s patent law forum for free. The majority of our attorneys have over fourteen years of experience in the area of patent law, and they can answer any questions you may have.

Taking the code beyond the abstract

There are two important principles for patenting software: first, you must provide improvements to the underlying mechanism of the system. A computer program that simply performs the known task of calculating an interest rate is unlikely to be patentable. Second, software must be an improvement on the abstract idea behind the method. An invention may be patentable if it improves the functionality of computers or reduces the number of computers necessary to perform a given task.

For example, a competent coder can follow directions and create a certain result with several lines of code. Therefore, the inventor of the software must explain possible scenarios and discuss potential problems. Flow charts that detail the entire software process can also be useful. Such charts also serve as an illustration of the potential problems of the software. The flow charts are typically part of the patent application. Once the inventor has drafted the code, the next step is to discuss possible scenarios that can occur.

While software development continues to grow, the prohibition on patenting abstract ideas has gotten wider. Today, the USPTO considers some forms of software as abstract ideas. After all, software is an abstract implementation of a mental or mathematical process. Thus, an inventor cannot turn an abstract idea into a patentable idea, and a general computer cannot execute the concept in a patented way. This prohibition is both logical and well-intentioned.