How to Patent Software

If you want to write software, you might wonder how to patent it. Before you begin writing, it is important to research existing software patents to avoid infringing on another person’s patent. Some software applications remain secret for 18 months after they are filed, but you can release the program after that time and risk being sued for infringement. Fortunately, most software patents are free to use, so you may be surprised by the costs involved.

Inventive step

An invention must have an ‘inventive step’ to qualify for patent protection. An invention must be a technical improvement over an existing product or process that is not obvious to someone skilled in the art. It also cannot be an abstract idea or collection of previously existing information. If you want to get a patent for a software application, you must have an ‘inventive step’ that is unique and different from any other software.

An example of an innovative process is a resource optimization method. By utilizing a resource optimization algorithm, an entity can be accessed with a minimum number of steps. This optimization is often computational in nature, with the lowest number of steps representing fewer computing cycles required to perform the task. The first step in evaluating an ‘inventive step’ for a CII involves the distinction between technical and non-technical features.

Another way to patent software is by reducing the computational resources required to perform the task. An example of an invention with this criteria is computer software that improves images. The EPO would see such a software application as a ‘technical’ invention, if the new mathematical algorithm in the program was unique and non-obvious. This type of software may be patented if its algorithm is not widely known and is essential to the task.

Developing an innovative software system or solution requires careful consideration of three important elements of the patent. A software patent application must be comprehensive and include both a single flow chart that describes the general computer architecture and a set of flow charts that detail the specific subroutines and routines. It must also provide examples of the user benefit and how this improves the user experience. The Inventive step is the key to the success of a software patent application.

Software inventions require extensive research and development to develop. They require more research and development than any other technology sector. In 2014, the US software industry directly contributed USD 475.3 billion to the nation’s GDP. It is also responsible for supporting an estimated 9.8 million jobs. However, despite the importance of software to society, the patent laws do not give equal protection to software inventions as they do to other novel technology advances. This lack of understanding may have something to do with the nature of software innovation and the different IP rights that apply.


There are two important requirements for a successful patenting software application. One is that the new software must be new and not obvious. Non-obviousness is the opposite of obviousness, and it is a very high bar. In many cases, the only way to prove that a software application is new and useful is to prove it works better than the prior art. The USPTO has criteria for determining whether software is new and useful, and applying these standards to patent software applications is critical to a successful patent.

Non-obviousness is another requirement for patenting a software application. While software inventions can automate processes, determining whether they are new and useful is a complicated process that requires expert assistance. Software patent attorneys can assist with this. The resulting patent will be both useful and valuable. Further, the software must not be a copy of something already available. To ensure that a software application is unique and not obvious, it is important to hire a patent attorney.

The non-obviousness requirement can be difficult to define. Because it involves subjectivity, there is a lot of debate around this requirement. A skilled patent attorney can provide guidance on the application’s eligibility. The patent office’s goal is to help a client protect his or her creations from the competition. In addition to helping clients protect their intellectual property, these attorneys can assist in negotiating the best patent terms.

The US Supreme Court reaffirmed Graham v. John Deere Co. in May 2018. The Supreme Court noted that the Federal Circuit’s use of the teaching-suggestion-motivation (TSM) test was too rigid and formal. The Court also noted that there are many lines of reasoning for determining whether a software invention is obvious. This approach to the obviousness inquiry was sanctioned by the KSR opinion.

However, the ultimate determination of obviousness is a legal conclusion. But the factual underlying Graham inquiries are factual. Findings of fact about the state of the art, teachings of prior art, and ordinary skill are necessary to establish obviousness. Thus, the federal courts are cautious about requesting retrospective analyses of a patent. They prefer to have a statement of the ‘inventive step’ that the applicant took that led to the invention.

Legal requirements

Patenting a computer program requires more than conventional activities. It must satisfy the legal requirements for patenting software. Patent examiners tend to take a very narrow view of Alice. Fortunately, the USPTO publishes two PEGs a year that set out formal guidelines for evaluating patent applications. The October 2019 PEG addresses software patent eligibility. Here are some things to keep in mind when preparing your application.

– Is your software computer code abstract? If so, it may be eligible for patent protection if it solves a problem “necessarily rooted in computer technology.” But it must be so abstract that its claims do not preempt every possible application of the idea. This requires detailed descriptions of the computing code that is used to produce the desired result. In addition, the software must be novel and useful. The software must also enable automatic generation of a computerized user interface. And, it must not create an artificial state of affairs. For example, data storage does not create an artificial physical effect.

A patentable software application requires that it has three specific pieces of information: a general description of the computer’s architecture, a single flowchart showing the overall working of the software, and a series of flow charts describing the implementation of its innovative features. It must also provide an illustration of the user experience. During the examination process, patent examiners are looking for an “observable ingenuity” that enables the creation of physical phenomena with the help of the software.

The USPTO and the JPO have separate legal requirements for patenting computer software. In the United States, the requirements for a computer software patent are more stringent than those for Europe. European patent laws are more ambiguous and abstract, so applicants should be familiar with recent precedent. The USPTO and the European Patent Office are more likely to require detailed descriptions. The software’s technical description must be as detailed as possible.

The USPTO has been a key player in the development of software patent law since the Alice v. CLS Bank decision. The USPTO has continually tried to interpret its own patent eligibility criteria. However, it has been unable to reconcile the ambiguity created by the Alice v. CLS Bank decision. As a result, software patent applications are often confined to new advances in the field of software engineering.

Cost of obtaining a patent

Filing a provisional patent application is a first step toward acquiring a software patent. You can file a provisional patent for around $1,500 to $2,000. A software patent can be used both offensively and defensively, but the real power is in your hands. As the owner of the patent, you are responsible for acting as its enforcer. A patent doesn’t give you exclusive rights to make and use your invention, and you can face lawsuits if someone else has a better idea.

If you are considering filing a provisional patent application, you need to know that the USPTO will reject a large percentage of your application. The cost of filing a formal application is approximately double that of a provisional application. Before filing a formal application, however, you should understand the costs involved. The process takes a lot of time and money, so be prepared to spend some extra money.

A typical software patent will cost between $8,000 and $12,000, with the median fee being $10,000. The price quoted for filing a provisional application will include representation after the application has been filed. You should do some research on which attorney would be best for your application and be sure to verify the novelty of your method. Obtaining a patent is a smart way to protect your idea and position your business for improved financial performance.

In the US, the cost of a software patent will vary from one application to the next. It costs $800 to file a provisional application and $800 for a small entity, while the cost of a utility patent will be between $15,000 and $25,000, depending on the situation. Depending on the type of software application and patent attorney you choose, you could be facing additional costs. You can opt to finance the patent yourself or hire a professional patent attorney to help you get your product patented.

The cost of a software patent is significantly higher than that of a traditional hardware patent. Depending on the type of invention, the patent can cost anywhere from $5,000 to $15,000+. A full set of drawings is estimated at $300 to $500. However, you should make sure that the software you are filing is unique enough to warrant a patent. It’s also worth the money to secure the legal protection of your idea.