How to File a Patent for a Software Idea
There are several aspects to consider when filing a patent application for your software idea. You should include as many illustrations as possible. More illustrations help the patent examiner understand your idea and make it sound plausible and novel. Additionally, more illustrations prevent someone from stealing your idea. It is crucial that you protect your idea. Here are a few tips to make your patent application look as good as possible:
Defining an “abstract idea”
If you are considering filing a patent application for a piece of software that you have created, it is essential to define the abstract idea in its proper context before you submit your proposal. A software idea may qualify as an abstract idea if it solves a problem that is “necessarily rooted” in computer technology, but it must also be applied in an unconventional way, and the claims should not preempt every application of the software.
The first step in defining an abstract idea when filing a patent application is to determine whether the idea is a machine that is capable of performing an action. The process must be a machine that automates a human-performed activity, and the claims must contain limitations that improve on the prior art. However, abstract ideas are not automatically rejected because of a lack of details, and the claims should be analyzed in their entirety to determine if they qualify as a software invention.
In the Alice case, the Supreme Court rejected a broad patent because it impedes technological innovation and could preempt an entire field of research. The Federal Circuit rejected this argument as a legal mistake, and affirmed the Federal Circuit’s definition of an abstract idea in McRo v. Bandai Namco, which clarified the rules governing software patents. The case was settled in favor of the plaintiff, which is a Japanese company.
Another reason to avoid drafting an abstract idea is that it is a “sample” of another idea, such as a patented method. Defining an abstract software idea can be challenging for many reasons. It can be challenging for the patent owner to claim the invention without additional elements. If the claim is insufficiently broad, a non-final rejection can be filed by a third party.
Defining a “patentable process”
As we’ve noted in previous posts, laws of nature, abstract ideas, and natural phenomena are not patentable. While courts may use different terminology, they all fall under the definition of a “patentable process” in the Patent Act. In fact, the PTO’s Manual of Patent Examining Procedure lists disembodied concepts, mathematical algorithms, and mental processes as non-patentable ideas.
In order to be patentable, an idea or algorithm must be new and useful. This is where the “Turing machine” concept comes in handy. Specifically, a Turing machine can convert miles to kilometers and vice versa. Alternatively, an algorithm to calculate E=mc2 is a patentable process, but it’s still public knowledge. In both cases, the invention’s scope is very narrow.
The Federal Circuit has made recent decisions confusing, so the Supreme Court reversed its decisions. The Court held that a “patentable process” can be tied to a machine or transformation to create a new thing. This “machine-or-transformation test” exempts general methods of doing business, as well as a whole range of other subjects. This decision was a huge step for software patentability.
Cost of a non-provisional patent application
The costs associated with preparing a non-provisional software patent are a little different than for a traditional application. A law firm will charge anywhere from $1,500 to $4,000 for a prior art search, which is essential for identifying previously issued patents and published patent applications that are similar to yours. This information can help determine which course of action is best for your software patent application and the extent of patent protection you should seek. However, the cost associated with preparing a prior art search does not include filing a patent application, which is the most important step.
The cost of filing a non-provisional software patent can be significantly higher, due in large part to the risk involved. While filing fees for provisional applications are lower than those for non-provisional applications, the net expense will always be higher. The fees for preparing a non-provisional software patent application should not exceed $5,000 to $7,500, depending on the complexity of your invention and the need for broad patent protection.
A provisional software patent application costs about $2,000 and includes attorney time. A provisional software patent application gives “patent pending” status to your invention while delaying the more expensive non-provisional software patent application by up to one year. A provisional application also secures a priority date and protects your confidential information. It is worth the money for a provisional application. The costs of filing a provisional application depend on the complexity of your invention and technology. However, a computer-related invention typically costs between $6,000 and $10,000 plus filing fee and drawing costs.
A non-provisional software patent application will require more detailed description of your software. The patent application should describe the complete architecture of the software system and its algorithms, routines, and sub-routines. You can consult a professional for this process. If you are unsure about the process, consult a lawyer who specializes in software patents. It is worth the investment if your software generates a significant income for your company.
Requirements for filing a patent application
If you’ve had a brilliant idea for a software application, you may want to file a patent application for it. However, filing a patent application is not an easy task. It requires a great deal of attention to detail, as the patent examiners look closely at the description and implementation of a software program. If you want to file a patent for your software idea, you must make sure that your idea is completely novel, and that it’s not similar to any other software product.
To file a software patent application, you must provide three specific pieces of information. These include a detailed description of your software’s overall computer architecture, one flowchart showing the workings of the software, and a series of flow charts of the software’s routines and subroutines. Once you have these three components, you can proceed with the application. If you fail to provide all of this information, you may not be able to get the patent.
The most important part of the process is determining whether your software is patentable. If your idea is not an abstract concept, you won’t get a patent. This is because the patent office examiners typically adopt a very narrow interpretation of Alice. Luckily, the USPTO issues two Patent Examiner Guidances per year to give examiners formal guidelines on how to evaluate patent applications. The October 2019 PEG addresses the eligibility requirements for software ideas.
In most cases, software inventions are abstract ideas. The patent examiner looks at whether the claims are abstract, or not. Generally, an abstract idea isn’t a software invention, but it still qualifies as a patentable idea. It should be designed to solve a problem that is “necessarily rooted” in computer technology. Moreover, the claims must not preempt every possible application of the idea.