Can You Patent Software Program?
A question you may have is, “Can you patent software program?” The answer depends on whether the program is an abstract idea or a computer-implemented process. In the United States, the answer is yes. Examples of software that may be eligible for a patent include a self-referential lookup table that improves the memory configuration of database systems, and software that archives digital images over a cellular network.
If you’re developing a new software program, you might wonder if it’s possible to patent it. The Federal Circuit has applied the abstract idea inquiry more than 100 times, and its rulings are extremely helpful in determining whether a claim is eligible for patent protection. While the Alice test doesn’t distinguish between novel ideas and abstract ideas, it does consider the claim’s technical character, specificity, and whether it cites prior art.
The Federal Circuit has ruled that the McRo claims are not based on an obvious process, and thus avoid broad preemption by requiring the claimed method or result to be novel, nonobvious, and fully described. In addition, a patent cannot be issued on a product or service that is obvious or involves an unobvious method. Various categories of abstract ideas are listed by the USPTO, including methods, processes, and devices that are not useful in the field.
While the Alice decision isn’t an absolute ban on abstract ideas, it has set a new precedent in the patenting of software programs. While a haircut software program would fall into the same category, an abstract idea can be applied to many kinds of programs and technologies. While an idea can be useful in a specific context, it’s not patentable in isolation. While it’s possible to patent such a program, it’s not possible to patent the idea if it’s merely a simple computer system.
In contrast, a mental process can be construed as an abstract idea, and courts have identified numerous product claims as reciting a mental process. For example, in the case of Symantec Corp., a computer system and method that allowed anonymous loan shopping was rejected by the Federal Circuit. This case involved an electronic post office, which is a computer network. The alleged method involved receiving, screening, and disseminating email on a network.
As a result, abstract ideas can be based on non-art, such as a dictionary. The Scholastic First Dictionary, for example, is a textbook for young children, defining phonetic symbols in the language. The use of such an idea is an abstract idea, and it’s not patentable. However, a dictionary is a useful invention, and it might be a viable candidate for patent protection.
Solving a problem
There are a few things that need to be kept in mind when patenting a software program. The invention has to be more than just a little extra activity. It must be important to the final goal and play a role in that goal. Software programs are not limited to code; the software architecture is also important. A software program can be patentable without code, but it must be the result of a particular design.
The first step in the process is determining whether or not the program is a problem-solving one. For example, a software program that generates random numbers would not be considered a solution to a technical problem. Instead, it could be an estimate of sales or even a commercial problem. Identifying a technical problem is essential for patentability, so if it’s not solved by the software, it doesn’t qualify as a patentable solution.
In a previous article I discussed how to protect your software from copyright infringement. While software patents aren’t particularly brilliant, they are based on improvements that an expert software designer can come up with during the development of a program. A good designer will often “invent” several improvements during the course of a project. In fact, IBM’s patent number 4,656,583 details several workmanlike speedups for compilers, including register coloring and computing available expressions.
New and useful computer-implemented process
The operative aspect of a patent claim for a computer-implemented invention must be not merely a copy of a known operation, but must overcome a technological problem caused by the computer implementation. If this operative aspect is directed to the operation, then a patentable computer-implemented process may be created. In the present case, this is an example of a computer-implemented process.
However, patenting computer-implemented processes has its detractors. The ACLU, for example, considers methods performed with pencil and paper as mental processes. The ACLU is against any claim based on the computer implementation if it is not tied to a software code. The ACLU argues that allowing such claims would inhibit the advancement of science. However, the IPO stands by its position, and has proposed a solution.
The USPTO has stated that an abstract idea can qualify as an “invention.” However, the Court has not said what constitutes an “invention” under this definition. This question is often tricky because many products have computer functionality that may be considered a computer-implemented process. For example, a digital clock can control its functions by means of computer technology, a car’s radio and dashboard, and a vacuum cleaner can have features controlled by the computer. While these examples are not exhaustive, they suggest that a computer-implemented invention is an advance in computer technology.
Solving a problem “necessarily rooted” in computer technology
A software application that helps employers find employees may not be a problem “necessarilly rooted” in computer technology. In reality, this problem has existed long before computers and can be solved without computer technology. But how does a solution become a “necessary” one? First, it must be clear what the problem is. For example, is it the transmission of messages? If so, then the problem is rooted in computer network technology.