Can You Patent a Software Algorithm?
Can you patent a mathematical formula, or can you patent a mathematical formula and add rich media to the search results? These are questions that often arise in the patenting process. Luckily, there are a number of ways you can protect your algorithm. In this article, we’ll look at some of the important rules and issues that may apply. As always, if you’re not sure, consult a patent attorney.
Is a mathematical formula a technical contribution?
If you’re writing an article about a new product, but it doesn’t mention any innovative ideas, you’re in trouble. The word “invention” in a patent claim doesn’t necessarily equate to a mathematical formula. It could mean the same thing as “calculating the force of an object by multiplying its mass by its acceleration.”
Does it need to be coupled with something “significantly more” to be patentable?
To be patentable, a claimed advance must be specific, a specific improvement over the prior art. The Chamberlain specification, for example, described the claimed advance as a “wide concept of communicating information wirelessly.” But an advancement must be specific in how it is done. In contrast, Enfish focused on a specific type of data structure, describing its advantages over prior art.
In addition to the novelty requirement, the other three elements must be sufficiently novel. The claim element must be a novel combination of technical character and specificity. These elements cannot appear separately in the claim. They should be in the same order. The invention should also be novel if the two elements are “significantly more” together. The Berkheimer case is a good example. This case was decided by the Federal Circuit.
Alice Corporation owns several patents relating to computerized trading. These patents use software to manage risks and settle obligations between primary and secondary parties. CLS Bank International uses similar software. CLS Bank International sued Alice Corporation in 2007 seeking a declaratory judgment from the District Court of the District of Columbia that Alice’s patents were invalid and did not infringe, a decision Alice’s lawyers dismissed.
The Federal Circuit followed the decisions of Bayer Healthcare LLC and Raytheon Technologies Corp. in the case of an enablement. In addition, the court also followed the precedent set by Indivior UK Ltd. and Dr. Reddy’s Laboratories S.A. to find that the patent must be based on a combined invention. These decisions are consistent with Alice.
The Solicitor General provided the government’s view on the issue in an amicus brief. Citing American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, Sweegen argued that the Patent-Eligible Subject Matter of the ‘911 patent failed to satisfy the requirements of Section 101. The Solicitor General’s brief, filed last month, expresses the government’s views in support of American Axle.
Alice’s patents might not be eligible under SS 101 because they are abstract ideas. CLS, however, argues that Alice’s patents should fall within this exception, since they are abstract ideas. The case may affect companies’ investment in innovative ideas, because patent eligibility can help determine a project’s profitability. If it is not patented, they may be unable to invest in the technology needed to develop it.
Regardless of how abstract the claim may be, the Alice decision is the guiding principle for patenting software and business methods. While the Alice decision has made it more difficult to patent abstract ideas, the court has established a threshold to qualify for a patent. Software-type claims that meet the standards for a patent are reasonable. The Alice decision resulted in the rejection of over 70 percent of software patents within three years.