The question of “Can you patent source code?” arises from a variety of reasons. One of these is the author’s desire to earn money from non-open-source users, and another is that patenting prevents other users from commercializing the software. In addition, some commercial users may prefer to license software outside of an open-source licence, for fear that the open-source licence may overreach. However, a patent preserves the author’s right to commercialise future iterations of the software. This is the reason why a patent is useful for the author, who may develop different variants of a program and offer some under an open-source license, while offering others under a different license.
Problems with copyrighting source code
Copyright does not protect facts, ideas, method or systems. Copyrights gives exclusive rights to the owner of the work in their lifetime plus a specific number of years depending on the laws of the owners’ nationality. A copyright protects the owner/authors creative work from been copied by another person without the author’s authority. It only protects how things are expressed. Although you can put your ideas down on paper or draw them, a copyright does not protect the idea. It protects tangible, fixed mediums of expression that are reproducible, such as the final written or artistic work.
Computer programs weren’t protected by copyright in the past because they were not considered fixed, tangible objects until 1974. Computer programs were granted the same copyright status that literary works in 1983 when the Copyright Act extended traditional copyright law to include machine-readable code. Software copyright is not the same as other legal principles or policies. However, there are many distinct issues.
Computer programs are implementations of ideas that solve specific problems. An inventor through creative means and ideas comes up with codes that are designed to solve technical related problems through the use of a computer. Source code is the systemized set of instructions for a computer program that creates a system for the user to follow and a method of operation. Generally, a source code arises from a program that through technical means drives the functioning of a computer. It is through source codes that computer programs are run and functions. As a result, source code is a valuable asset to protect, both for the computer and its creator. However, the process by which source code is created is not always clear-cut. Additionally, a source code gives the user right to use another persons’ well thought ideas and creativity more freely than the author would most probably wish. Here are some common issues that may prevent you from successfully copyrighting your code.
Process of filing a software patent application
Software patents are a powerful form of protection. Although patents are more difficult to obtain and don’t last as long, they are essential for software developers. Patents are a more solid form of protection compared to copyrights. They are able to protect program features that aren’t protected by copyright laws. Patents are required to protect an author’s program if it uses an algorithm or step-by-step method for solving a problem. An author’s algorithm cannot be used in any other computer program since such use is termed as infringement.
For a successful software patent application, just like every other software patent application, you must focus on details, not just the generalities of a method. Your patent application should show multiple steps, diagrams, audio-visual support, and a demonstration of how the software works. Your source code as its creator is your property intellectually. it is therefore expected that you have the insides and outs of your own creation. The application and registration of software patents has greatly increased in the past two years especially since the Covid -19 pandemic. Critics of software patents worry that the market is already saturated and that there is no finite definition of software. Additionally, there is no way to monitor the use of software, so existing software may already be protected by copyright, which doesn’t offer the same level of protection as a patent.
To protect your invention, you should first consult a software patent attorney. This attorney should be experienced in software patents and have all the requisite knowledge on software patents and be up to date on any relevant information and developments on such patents. However, before hiring a patent attorney, you should determine which features and technical improvements are most important to your software and which ones are difficult to implement. Your patent attorney will determine if these features are enough to file a software patent application. Below are some steps to guide you through the process of filing a software patent application.
The first step in patent analysis is determining whether your claimed invention is directed towards an abstract idea. Abstract ideas include fundamental economic practices, mathematical ideas, and the organization of human activities. A mathematical idea can only be patented if at all it provides a technical effect. This means that the idea that existed before of a certain concept has been improved and can now do something that it could not do or perform before. Most business method-based software inventions are directed toward an abstract idea. This makes them unpatentable unless they are improved or upgraded to do or perform better or extraordinarily than the existing ideas. In addition to your patent application been successful, its analysis must determine whether the claimed invention is limited to a particular technology or improves another technology. Lastly, you must prove that your invention significantly improves the function of a computer by making it way better and worthy than what it was previously known for performing.
The USPTO has strict guidelines regarding the eligibility of software. The patent eligibility of software may be the biggest obstacle to receiving patent protection for your software. Moreover, software patents are often elusive, as the legal landscape changes so quickly. However, this trend appears to be changing for the better. So, if you want to get a software patent, follow the latest guidelines. This way, your technology will be able to stay protected for decades to come.
Requirements of a software patent application
Before submitting and considering to apply for a software patent application, it is imperative to understand the requirements for filing a software patent. The software patent specification must include three specific pieces of information. The first is a description of the overall computer architecture, and the second is a series of flow charts describing the various routines, subroutines, and functions of the claimed software comes last. Whether you are filing for a patent for a game or a software application, it is important to understand these requirements.
A software patent application has many similarities to a patent application for any other type of invention. First, the claimed subject matter must be novel and non-obvious. This means that your idea must be unique, original and unheard of. Secondly, the claim must be specific enough to enable a person with ordinary skill in the relevant art to practice it. Therefore, an inventor must not hold back anything useful to prevent the ordinary skilled person from using or making use of the idea. Last but not least, the invention must be useful and not obvious. These requirements apply to both hardware and software. Failure to clearly understand these requirements can easily render a person the inability to file a patent application.
In a nutshell, to qualify for a software patent, the invention must not be obvious to a person with the usual skill in the art at the time of filing. While software can automate processes, new software can face obstacles to patentability because it is too complicated to define whether the software is a real invention. A patent practitioner can help you decide whether your software invention is not simply a piece of software. This may require the hiring of a patent attorney.
Whether your invention qualifies for a patent depends on its ability to be patented. If the software solves a problem that is “necessarily rooted” in computer technology, it may be considered a patentable idea. However, this doesn’t mean that the claim will cover all applications of that technology. In addition, the software should have claims that are specific to the particular computing technology, rather than generic.
Cost of a software patent application
Patent applications and registrations are generally believed to be costly and expensive. However, a software patent can help protect an idea from unauthorized use by competitors and positions an organization for higher revenues. A software patent can range from $1,000 to $3,000, and the cost is often based on the perceived value of the idea. The cost of a software patent application varies greatly depending on the complexity of the invention, but it is generally within $30k to $50,000 in the US. Additionally, the process takes several years, and an inventor will need to spend significant time on the application and defense of the patent.
Hiring a patent attorney can help you navigate the application process and provide a cost breakdown. An attorney will charge between $200 and $400 per hour, and he or she can help you get your software patent faster. With a lawyer, the entire process can be finished in days, not weeks. While filing a software patent application may not cost a fortune, it does take time to understand and learn the legal jargon.
Filing fees vary depending on the complexity of the invention. For a simple invention, a software patent application will cost around $7500. For a more complicated invention, it will cost upwards of $17,000. Examples of complex inventions are medical imaging systems and telecommunications. Other types of inventions, such as biological or chemical processes, generally cost in the same range. For these reasons, the cost of a software patent application is often higher than the cost of another type of invention.
Patent attorney fees vary widely. On average, a patent attorney will charge between $2,000 and $4500. However, the fees will depend on the complexity of the invention and the level of technical knowledge of the applicant. It is possible to get a software patent for much less than that if you use a do-it-yourself patent attorney, but you will need to spend a few thousand dollars to hire a patent attorney which may sound and seem expensive but some argue that is safer and more secure since the attorney has experience in the said field.
Legal implications of a software patent application
Software patents are often objected to in cases of trivial inventions, arguing that they impede the development of a new product. Patents in this area differ in approach across countries. The European Patent Convection uses a test called the ‘Inventive step’ to determine whether a software patent is valid. In other words, a software patent needs to be a significant improvement over the prior art in order to qualify.
The underlying technology of a software invention may be patentable, even if it contains unconventional components. In a recent case, a software patent was upheld because the court analyzed the patent as a whole, rather than its components. In this case, a patentee sought to protect a tool that could be installed remotely on a computer terminal. While the patent was not invalidated on the basis of the novelness of the technology, it was invalidated based on the overall nature of the software.
Patenting software is not an easy task, and it is important to hire a qualified lawyer to help you. A qualified lawyer will help you through the entire process, including the drafting of the patent application. Claims are an essential part of a software patent application and are very difficult to change once it is submitted. Working with an attorney is essential, as errors in drafting the claims will affect the likelihood of a successful application being rejected by the USPTO.
Today, the digital economy is largely based on technology, and much of the value is in software. As this new technology becomes more important in everyday life, the intellectual property laws for all sectors are changing accordingly. Until the late 20th century, the technology behind innovative products and services was largely embedded in hardware. Today, sophisticated semiconductor technology is no longer the sole source of innovation. Software is increasingly the sole basis of technical functionality. Therefore, software inventions have significant advantages over their hardware counterparts.