How Long Does a Software Patent Last?
What is a software patent?
A software patent can be defined as a patent that is directed at a program or algorithm that is implemented on or used by a computer.
The United States Patent and Trademark Office
has historically not considered software patentable. This is because by statute, patents cannot be granted to “processes and machines, articles of manufacturing, and compositions or matter.
However, the USPTO’s position was challenged in Diamond v. Diehr, 450 U.S. 175 (1981)
, a landmark Supreme Court case from 1981. This case concerned a device that used computer programming to determine the timing of curing rubber. The software was an integral part of the device but it also performed other functions related to real-world manipulation. It was then declared patentable as a mold rubber device. In essence, the court ruled that algorithms could not be patented but that devices that use them could.
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Requirements for Patentability
When it comes to a software patent, the first and most important step is to establish that the software is truly innovative. It must also have a mechanism or task that can be automated. It should also have the capability to coordinate various devices and systems, including communication and hardware. If it’s a software application that automates tasks, it’s likely to be patented.
Software is patentable if it meets the same requirements as any other type invention. The general requirements for patentability are that the invention must be novel, useful, and not obvious. A fourth requirement is that the invention is patent-eligible and not directed to a judicial exception such as an abstract idea.
So the more technical a software innovation is, the greater chance it will be patentable. If your software is used to do tasks that can be done with pen and paper, it will probably not be patentable. Your software may be patentable if it has a technical effect on existing systems. For example, it creates new memory structures, creates a new database structure, or improves overall performance and function of the computer.
Length of Patent Protection
Knowing when your patent expires will be key. This is done by determining the exact filing date. You may have multiple filing dates. Therefore, you will need to verify that you have the right one.
The type of patent you get for your software is another consideration. There are three types of patents
: utility patents; design patents; and plant patents.
A utility patent
is generally valid for 20 years after the date of its earliest filing. Design patents
provide protection for 15 years from the date that the patent is issued, while patent protection for plant patents
lasts 17 years.
Software patents are mostly classified as utility patents as they mostly improve computer functionality or perform computing tasks in an unconventional way. By definition a utility patent is issued for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof. It is the most common type of patent issued in the US, accounting for over 90% of the patents issued by the USPTO.
Therefore it is fairly accurate to state that software patents typically last for 20 years from the effective date of filing.
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Reviewing Protection Period for Software Patents
In the recent past, there has been a lot of discussion on whether software patents, because of their unique nature, should receive the standard 20 year protection period. A comment from U.S. Court of Appeals Judge Andrew Newman suggests a shorter lifespan of five to six years is more reasonable for software patents. While a legislative change is necessary to implement such a change, it is an interesting notion.
The plausible explanation for this is that term “Software Patent” is a misnomer. A software product’s lifecycle tends to end before the patent issues, and that means that by the time it is patented, the technology is obsolete and the patent becomes useful only for a short period. According to Forbes magazine
, “Software products have very short innovation cycles and short effective commercial lifespans.”
A cotton gin, for example, was only useful for half of its lifetime, which is a lot less than four years. The patented software should therefore be publicly available after that period. Therefore, shorter lifespans for software patents make more sense.
The shorter lifespan of software patents is important because the software industry changes every year. The patenting process may be ineffective for the software industry, where rapid innovation takes place. Shorter lifespans for software patents will ensure a greater return on investment. Moreover, it will reduce the cost of licensing software and create a greater demand for it in the market. If these issues are not resolved, software patents can continue to cause problems.
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Expiration of Patent Protection Period
After the software patent expires, the only rights that remain are the rights to bring infringement actions based upon infringements that occurred during the patent’s lifetime.
Legal fees for a software patent
Many startup entrepreneurs do not realize how much money goes into acquiring a software patent. The process may be complex, but an attorney who has the experience to get the job done will likely save you time and money. Before you hire a patent attorney, make sure you’ve researched the patent process thoroughly. The patent attorney will review the results of the search and ensure that your invention is truly unique and is eligible to receive a patent.
Generally, patent applications have two stages: preparation and prosecution both of which require legal fees when enlisting the services of a patent attorney. A good patent attorney will help you get the best deal.