You have an idea for a program or set of instructions that you believe others would find useful, novel and non-obvious. Congratulations! You could be on your way to being granted a US patent! Though when it comes to software patents in the United States, there can be many pitfalls along the way. The following advice will help you avoid these pitfalls and represent yourself through the process of how to file a U.S software patent.
Do A Software Patent Search Before Filing
The best way to make sure your investment in patent filing is worthwhile is to conduct a patent search. This process will ensure that no one else has already patented the same idea as yours.
However, doing a search may not always be possible. If you’re on a budget, you may need to make some compromises. For example, if you’re not able to hire a patent attorney, you might have to do it yourself.
Why You Should do a Patent Search before Filing Your Software Patent
It can be difficult to discern whether your idea is unique, and your patent attorney’s experience can help you to make the right decision. However, in many cases, a patent search will give you a better idea if you know the relevant prior art and how to define it properly.
In some cases, a patent search can help you determine whether a competitor has already patented your idea. If the competitor has already patented your idea, you can choose to invalidate the patent. Additionally, it can also help you find out the validity of your invention and reduce the risk of rejection. Ultimately, a patent search can help you protect your idea by preventing others from copying your ideas.
You should always perform a patent search on your software invention before submitting your patent application. Before you apply for a patent, you need to know if the product has already been patented.
How to Conduct a Software Patent Search so as to Prepare for Your Software Patent Filing
You can use the USPTO’s public search facility to find out if any other patents already exist. However, you can’t be 100% sure if your idea is truly unique if it’s too similar to another product because certain patent applications may not be published if they are outside of their 18-month publication window.
Searching for prior art is an essential part of the software patenting process. This process involves examining the prior art for your invention in different databases. There are many different search strategies to consider, such as keyword, name, classification, and citation searches. In some cases, a combination of these strategies is used.
A keyword search uses the main features of your invention to create search strings that will be used to evaluate the prior art for your invention. A prior art search like the word suggest is done to check whether similar arts of your invention do exist or whether any previous registration of an invention that is similar to your invention exists.
When searching for prior art, you should make sure that the sources of the prior art are relevant to your technology. The Internet is an excellent resource for conducting a prior art search.
Patent collections are well-indexed and contain many relevant pieces of information. However, it is virtually impossible to search these databases exhaustively. Moreover, you may not be able to access relevant databases in English.
Regardless of who does the search, it is important to find as much relevant prior art as possible. However, some inventors prefer to do the search themselves. They will have a better understanding of different technologies and will be more likely to understand the technical material.
This will reduce the risk of inequitable conduct. Inequitable conduct means dishonesty or a breach of duty by the patent applicant in not providing known prior art to the patent office.
You can use our list of patent analysis to search for a patent in your industry :
- Software Patents Analysis
- Artificial Intelligence (AI)
- Blockchain and Fintech
- Medical Device Patent
Also, there is Google Patent Search, which, while helpful, lacks customization features and search filters, making it difficult to find relevant software patents. It is advised to avoid use of questionable search services that offer bargain-basement prices but will yield inaccurate results. Such services may not search the entire USPTO database and may only search synonyms of your software invention.
The best way to search for software patents is to hire a licensed patent attorney. It may be costly to hire a patent attorney but you are assured of a more extensive search that is highly accurate and reliable.
Patent research can be complicated. It is important to work with your lawyer throughout the process, which betters your experience in the dynamic field. A successful patent offers a comprehensive report on any patents that might be relevant to your invention.
This information is of great value and importance to the completion of your patent application.
Word of Warning when Conducting a Patent Search
While it may be tempting to rely on the results of a patentability search, you need to keep in mind that these searches are not perfect. Some companies might come up with useless results while others will give you hundreds of references with similar relevance.
In summary, there are several methods for finding prior art, including the search of relevant literature and other sources. You can also set up a regular schedule to conduct this search and get notifications when the prior art changes.
This can help you avoid wasting time on unnecessary searches. It is also important to note that citing prior art can reduce the scope of your patent and result in the patent being deemed invalid. The USPTO has various search methods, which you can use to find relevant prior art.
The benefits of a comprehensive software patent search go far beyond a simple list of potential patents. Patent searching is an effective way to reduce the cost of patent preparation and prosecution, as well as to conduct patent mapping exercises and landscape analyses. To obtain meaningful results from a comprehensive software patent search, a comprehensive search must be based on an extensive corpus of patent references.
An integrated approach involving representatives from R&D, legal, and corporate development is a great way to ensure that your software patent search is comprehensive and dependable.
The results of a software patent search help you determine whether or not a similar type of software has already been developed. By checking the patent history of a specific software, you can decide whether your software is truly unique or not. If a similar software has been previously patented, you can decide whether it is worth your time and effort to patent it. There are numerous ways to find a software patent and get the best possible results.
In sum, a comprehensive software patent search will reveal whether similar software has already been patented, which is essential for protecting your new software. It will also reveal whether other software has similar features to yours. This can help you formulate your patent application language and avoid potentially conflicting applications.
Further, it can save you time and money as you won’t need to spend time and money filing a patent application. There are several benefits of a comprehensive software patent search, and they’re worth exploring if your idea is unique.
Write Your Software Patent Application for Allowance
If you’re considering filing a software patent, there are a few important requirements that you should keep in mind before you start the process. Patenting software is easier than it sounds.
While the USPTO has some very specific rules regarding this type of patent, it’s important to understand what they’re requiring in order to qualify for a patent. Below are the main requirements you’ll need to fulfill in order to get your software patented.
The first requirement is thoroughness. When filing a software patent, you must ensure that you’ve described the invention in detail. Even minor variations can affect the patentability of your invention. To get the most out of your software patent application, you’ll want to consult with a patent attorney. During the initial stages of the process, you’ll need to search for other similar patents to make sure yours is unique.
Secondly, you’ll need to describe in depth how to implement the invention. While it’s not necessary to submit a raw, uncompiled version of the software, you must explain how it’s implemented. A software patent application is often difficult to amend once filed, so it’s best to hire a professional.
The application draft will be your most important tool during the patent examination, so make sure you do the right thing before filing.
A patentable idea can be either a machine or a computer program. A computer program may not be patented for a software product if it is not “necessarily rooted” in computer technology, but it must solve a problem in an unusual way. Furthermore, a software patent application must not preempt every application of a specific concept or idea.
The software should be able to be executed in a variety of ways. When drafting a software patent application, it is important to remember that it is important to carefully consider the technical requirements.
Software patents are written in method claims, which capture the features and uses of a software application. The Mayo, Alice, and Myriad cases changed the long-held ways of protecting new software applications.
In addition to these technical requirements, a software patent application must meet a comprehensive disclosure of the invention and properly drafted claims.
If you are interested in patenting your software invention, you’ve come to the right place. Software patents can be filed to protect your idea, as long as you solve a technical problem. While software patents tend to generate more debate than other fields, they can be a great way to protect your work. However, software patents have not always been kind to inventors. Here are a few steps to follow to ensure that your software is protectable under the patent system.
1. Provide Detailed Description of the Algorithm or Code
Furthermore, it is important to note that abstract ideas do not qualify as patentable items, so the software market is confusing. Even though the EU does not allow software patents, it has made attempts to standardize instructions across the EU.
If you are planning to file a software patent, you’ll need a detailed description of the code you created for the invention. Historically, software patents required technical disclosure.
However, the patent process has changed dramatically since then. In recent years, patent offices are more relaxed about this requirement, and software patents can be issued without technical disclosure.
Here are the steps to follow. If you’ve developed a new software product, you should describe it in detail in the patent application.
A detailed description of the implementation with a particular technology is vital to the success of a software patent application. It must demonstrate that the inventor possessed the invention at the time he or she filed the patent application.
The first step is to define your invention. This is not always easy. In defining your invention, you have to consider many different perspectives, including the machine, the user, and the process.
Using multiple perspectives enables you to provide a sophisticated and illustrative description of your software method. You can also include examples that show how your invention works in a tangible way. After all, this is the best way to protect your investment, and it also makes it harder for competitors to copy it.
A comprehensive description of the code is vital to securing a software patent. You should explain your invention in great detail, focusing on both the big picture and the details. It is also helpful to include high level flow charts, as well as detailed understanding of implementation.
All these steps will help you better understand your invention’s complexity. This way, you can demonstrate that your software is truly novel.
Detailed description of the code is required to protect software-related inventions. The patent process requires a detailed description of the code that describes how your software carries out a software method. The disclosure doesn’t necessarily include the user experience.
Instead, it must describe how the software carries out its function. The patent applicant must provide information on both the user experience and the computer system itself. There are also other perspectives that must be discussed.
2. Include As Many Diagrams, Flowcharts, Equations, Illustrations As Possible
When filing a patent for software, it is vital to include as many diagrams, flowcharts and equations as possible to prove that your idea is unique and feasible.
This is especially true for new software products or inventions, as the patent examiner will need to see the invention in action before granting a patent. In addition, the more illustrations you include, the more convincing it will be to the patent examiner and to the courts that the invention is novel.
This is one area where you can pre-empt any objections as to abstract idea. In the Alice case, the Supreme Court rejected a broad patent because it impedes technological innovation and could preempt an entire field of research. Your diagrams can focus on the specificity of your software invention. You can show illustrations of the performance gain the invention achieves for the computer running the software.
A software idea classified as an abstract idea may still be patentable if it solves a problem that is “necessarily rooted” in computer technology. Your flowcharts can show how the software can be applied in an unconventional way, and the claims should be targeted at the specific application(s) shown in the drawings and described in the specification so as to not preempt every application of the abstract idea.
3. Ensure Subject Matter Patent Eligibility
When it comes to software patents, ensuring the subject matter is patent eligible is essential. While Alice has been discussed ad nauseum elsewhere, it remains the cornerstone of most eligibility analyses. In essence, Alice requires that a claim be more than the sum of its component parts. And a patent must cover at least one step in the process, from conception to usefulness.
The USPTO issued supplemental guidelines in 2014 to make it easier for applicants and examiners to understand what qualifies as patent-eligible subject matter.
While these guidelines do not address all possible issues with software patents, they do provide a useful starting point for drafting arguments in patent applications. In particular, the examples provided in the guidelines are useful in identifying which aspects of software claims are likely to be patentable and which aren’t.
To get a patent for software, companies must make sure the software they are trying to patent is new and non-obvious. Moreover, the software patent applications should not claim abstract ideas, if the invention is related to an abstract idea, that the claims meet certain eligibility escape hatches. For example, showing how the invention improves computer performance goes a long way to showing patent eligibility. Examples are available on the USPTO’s Subject Matter Eligibility website.
4. Ensure The Subject Matter Is “Necessarily Rooted” In Computer Technology
The Alice Two Step Test requires patent applications to include claims based on “problem solving,” “software features,” or other technological concepts. It is therefore best for litigants to focus on one particular technological problem or feature rather than making broad claims that include all technology.
You still can do this and protect the specificity that differentiates your software from the competition. Patent protection of features enabling product differentiation is the key aspect or aspects that distinguish a company’s products or services from the competition.
Successful product differentiation leads to brand loyalty and an increase in sales. The protection of such differentiation should be communicated clearly to the patent attorney. To make sure that your claim will be successful, you should first review the Alice rulings to see if it is applicable to your particular technology.
5. Show Inventive Step
A crucial part of the patent process is establishing inventiveness. This involves the creation of a hypothetical addressee for which the patent is sought.
It is imperative to demonstrate that the invention was technically advanced, as even a scintilla of inventiveness will prove the patentability of the software. The more narrow the field of technology is, the more likely the software will qualify for patent protection.
The invention must involve a new and inventive approach to the problem. It cannot be based on an existing or obvious improvement. An example of this is a new way to make swings.
A manufacturer might already have this technique, but the applicant can still patent the improvement. The difference between an obvious improvement and an inventive step is the level of detail. While some of these improvements are minor, they still require the invention to be inventive.
To be patentable, your invention must solve a problem that a user faces. You must solve the problem by using your technical knowledge or by reading existing literature. Otherwise, your invention will not qualify as inventive. It also must be better than existing solutions, either in terms of accuracy or efficacy.
Alternatively, it must be a new and inventive way of performing a previously known task. If the problem is solvable by following existing methods, the invention might qualify as an invention with an inventive step.
Software is a ubiquitous technological innovation that permeates almost every area of technology. In recent years, patentable software has gained more respect than ever before.
Patentable software is used in virtually every technological field, and the courts have been justified in granting patent protection for software. While current patent law is sensitive to control, it also must maintain a delicate balance between public access and the rights of inventors. The evaluation process requires establishing novelty, establishing common general knowledge, and constructing a hypothetical skilled addressee.
As a computer program, the core is the design of the system. The code implements the requirements and vision of the desired design. An inventive step can be determined through the computational efficiency of the algorithm. It may even be motivated by technical considerations of the internal working of the computer.
Further, the invention must also be useful in a practical setting. The invention must be practical, and it must be industrially applicable.
6. Draft Defensible Claims for Software Patent
Software-related claims are subject to increased scrutiny after the Alice decision. Nevertheless, many software-related claims remain unaffected. In some areas, such as medical diagnostics, software-driven products may include technical solutions to technological problems.
They may even constitute novel concepts. Business method patents continue to be available. It is important to seek the advice of an experienced patent lawyer with deep knowledge of Alice caselaw and 3D printing technology.
First, consider your claims. Make sure that the invention is sufficiently unique and does not merely automate a process or an abstract idea. Then, consider the context in which your invention might be implemented.
The context should be relevant to a specific problem in the computer industry. Claims that address problems that are specific to the internet might be eligible. But before you file a patent application, carefully examine the details of your invention to make sure you can make the most of your application.
Software-related claims that solve a problem “necessarily rooted in computer technology” can also be eligible for a software patent. Claims that address a problem that is unconventional may also be patentable, so long as they do not preempt every application of the idea.
The patented software may require a high level of computing power. For such cases, the applicant should be prepared to pay a high fee for a lawyer.
In addition to the patent eligibility requirement, the claims should be novel, useful and non-obvious. Patents can be granted on software-based innovations that improve the lives of others.
The USPTO and courts continue to grant software patents. The Alice Corporation case has shifted the rules about the eligibility of software in patents. Nevertheless, the case does not signal the end of software-based patenting.
Defining an invention is a challenge for software patent applicants. However, the Bilski v. Kappos patent case settled in 2010 re-defined the requirements for patent eligibility. The Bilski decision clarified that a software invention must be “tied to a machine” and transform. These factors are important for software patent applications. The patent office will be scrutinizing these claims closely.
Cost Of Filing A Software Patent Application
If you are interested in a patent search, 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.
If the search indicates your invention is novel, the next step is to prepare and file your software patent application.
The cost of preparing and filing a software patent application depends on the complexity of the invention. A typical application costs anywhere from $8,000 to $18,000, though the median is around $10,000.
The cost of filing a software patent application can vary widely, depending on the complexity of the invention and the quality of the patent attorney.
While filing a software patent application requires time, knowledge, and money, it can also be a valuable investment. However, you should first consider whether the value of your software makes the costs worth it. If you are looking for protection against competitors so that you can meet your Go-To-Market goals, filing a software patent application is easily worth it.
You should also consider how much potential revenue the software may generate. It may be worth it if it can bring in a substantial income. It may also be worth the investment if your patent pending status provides marketing exclusivity for your company and keeps competition at bay trying to figure out how to design-around your patent application.
Filing A Provisional Application for Your Software Patent
If you’re unsure about the costs of filing a non-provisional software patent application, provisional applications are often cheaper than full applications. Unlike a full application, a provisional application does not require detailed patent claims.
But this is not to say that you should not file a non-provisional application. Provisional patent applications are generally cheaper, ranging from free if you do-it-yourself, or if you get lawyer assistance the preparation cost can be between one to three thousand dollars.
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.
Getting your idea out into the world is not always easy. Many inventors have limited funds or the means to produce their ideas. In the meantime, many of these ideas are buried under layers of the prior art and never make it to market. This is where the first-filed patent application comes in.
It is vital to get the details right because adding new information to an already-existing application can jeopardize the priority date and filing date. While patent applications require substantial technical disclosure, the invention must be well-defined and described to impress the examiners.
To do this, the specification must be as detailed as possible and focus on the big picture as well as the details of implementation. The patent application is like a self-contained design document. This way, the patent examiners can quickly assess whether the invention is novel enough to deserve a patent.
There are many advantages to filing a provisional application for a software-related patent. A provisional patents application is made to legally protect your patent from being copied twelve months before a formal application is filed.
This method gives the inventor one year to decide whether to pursue a full-fledged patent or merely seek to maintain the status quo. Additionally, the provisional application provides protection while the federal government continues to make changes to the rules for obtaining a software patent.
The first step in filing a provisional application is to make sure that the idea you want to protect is unique and novel. If it has already been invented or is obvious, you won’t be successful.
This is why you should perform a patent search, check with the World Intellectual Property Organization website, and go over any notes you’ve made about the idea. In addition, a provisional application must be free of errors and grammatical mistakes.
If you are concerned about the quality and cost of filing a provisional application, you can hire an attorney to review the document. Some attorneys offer to review your application for three or four hours, but this is not enough time for a comprehensive revision.
To be on the safer side, it is best to consult a patent attorney from the beginning of your application to the end. You can then submit the entire application as one document.
When this process is complete, you can move on to the next step; filing a non-provisional application. You should contact a patent attorney to discuss your software’s patentability. Patentability means that your patent has met set requirements for it to be granted patent.
Filing a provisional application gives you a priority date and reserves your patent rights. If you decide to proceed with the non-provisional application, your patent attorney can help you complete the paperwork and get your software protected.
Alternatively, you can work with a patent attorney to file a non-provisional application as early as possible.
Unlike a full-fledged application, a provisional application is more affordable. It does not require a thorough review by the USPTO. The filing date of a provisional patent expires after a year.
The benefit of filing a provisional application is that it gives you twelve months to develop your product, raise money, and/or market your product.
If you are a small entity, filing a provisional application will save you money. If you do it yourself (DIY), you do not have to pay an attorney to file a provisional application, and the PTO filing fee for provisional applications is quite small for micro or small entities.
If you think your invention may qualify for a US software patent but lack money, you should consider filing a provisional application. Unlike a regular application, a provisional application is not examined to determine patentability, but it will get you a priority date and allow you to delay the examination of your invention up to one year.
If you are worried about the technical details of the process, you should make sure to hire a licensed patent attorney. The USPTO always recommends that you use a registered patent attorney.
However, it understands that legal help is out of reach for many applicants, so it has a Pro Se Assistance Program.
Get Your Software Patent Filed in the Best Possible Manner
If you are wondering how to file software patents, you’ve come to the right place. Here are the basic requirements and what to expect. We hope our discussion on cost, abstract idea issues, and details in the description is helpful as you patent your valuable software assets.
US patent law is a first-to-file, not first-to-invent system, so moving quickly is critical.
For more information about our services, call us at 800-234-3032 or schedule a strategy call with us. And as always, feel free to ask us questions. We’re always happy to help! In the meantime, get started on filing your software patent application!