Can Software Ideas Be Patented?

Can software ideas be patented? The question of whether or not a software idea can be patented is a complex one. First of all, patents on software cannot claim that the software is a “business method” or a “customer benefit.” Secondly, no software idea can be patented if it is used by customers. But there are ways to avoid patent infringement. This article provides some guidance on the legal issues involved.

99% of software is not “novel” or “non-obvious”

It’s no secret that the vast majority of software is not “novel” and is therefore not patentable. But many developers and techies claim that patenting software impedes innovation because 99% of all software is not “novel” or “non-obvious.” Brad Feld outlined his main criticisms of software patents.

Providing a technical implementation of how the software performs a task would pass the Alice test

In the United States, the patent examiners follow the Alice framework when analyzing a patent application. These courts typically analyze software-related inventions under the abstract idea exception. While laws of nature and other natural phenomena are abstract ideas, these concepts are rarely used in software-related inventions. Therefore, patents that describe how software performs a task or performs a particular function would probably pass the Alice test.

The Federal Circuit has not recognized the shadow test as a substitute for the step one analysis. The Alice inquiry asks whether the claimed improvements are “directed to” a specific concept or “technical implementation.” Providing a technical implementation of how the software performs a task would pass the Alice test. This approach is useful in patent prosecution and would help software developers avoid litigation.

In a recent case, the Federal Circuit has recognized the need for a technological tool to qualify a software patent. The Enfish court explained that claims in this case did not merely describe a computer algorithm. In essence, the patentee’s claim was not an abstract idea. Accordingly, the software claimed was a technical implementation of how the software performs a task. However, this approach requires a patentee to provide a technical implementation of the software.

To conclude, this case is an important one. More software patent litigation should take the Alice test into account. In a case like this, a software patent application can be defended if the claimed user interface is substantially improved over the prior art. Moreover, Alice is not an exception to the general rule, which says that a claimed user interface should have some kind of usability improvement over prior art.

The Alice test is a fundamental question of law. It is not about invention, but about whether or not a software claim encompasses an abstract idea. As a result, it is not necessary for the defendant to submit evidence to support its claim. The Alice decision cited publications that supported the concept as conventional, but most cases have not relied on evidence to support their findings.

The Alice test has created a framework that helps examiners evaluate the novelty of a software application. This framework has helped patent eligibility cases while also creating confusion and controversy. If a software application meets the Alice test, it would be deemed patent-eligible. If not, it would not be considered patent-eligible. It is vital to be aware of the Alice test and its limitations before filing a patent application.

Providing a technical implementation of how the software performs a task would pass the Unitary Patent System proposal for the EU

A proposed EU patent system provides that a patent that is granted for a software implementation must be available in English and at least one other official language. This approach would have some drawbacks. It would require patent holders to pursue litigation in each country, and could potentially lead to inconsistency between decisions made by different national courts.

The European Council and the European Parliament reached an agreement on the EU patent proposal on 17 December 2012 and agreed to make it a unitary patent. The regulations approved by the European Parliament and Council would be valid in at least 17 EU member states. Italy and Spain resisted the idea for political reasons, but they eventually agreed to participate. The UK will not participate, because it left the EU.

In addition to these benefits, the Unitary Patent System proposal for the EU would be compatible with international law. Patents based on software implementations that provide a technical implementation of how the software performs a task would pass the Unitary Patent System proposal for the EU. The proposed patent system is set to enter into force in the EU by 2022.

Under the proposed EU patent system, a computer software application must provide a technical implementation of how the software perform a task. Such patents would be granted in English, but only in those jurisdictions where the language of the patent grant is the official language. If the software complies with the proposed rules, providing a technical implementation of how the software performs a task would pass the proposal for the EU unitary patent system.

The proposal for a Unitary Patent System for the EU is a complex piece of legislation, but it could have significant implications. Italy’s notification to the Council of the European Union on 7 July 2015 made the proposal a bit more difficult to implement. But the outcome will be the same: the proposed system is not a comprehensive European patent package, but rather a set of rules that are applicable to all member states.

The UPC is made up of panels of internationally appointed judges with both legal and technical expertise. A committee of participating member states would nominate a panel of judges, with some candidates already highly qualified while others would need further training. A group of these candidates has completed its first two training modules and now will serve as interns at European patent courts.

A separate Appeals Court would be created to hear patent cases. The Appeals Court would be located in Luxembourg. The judges in the Central Division would also decide on validity and infringement in unified proceedings. In addition to this, the European Court of Justice will have a role in unitary patent litigation. So, a patent for a software that performs a task would likely pass the proposal for a Unitary Patent System in the EU.