How to Patent Software in the US

Interested in learning how to patent software in the US? Here are some guidelines to follow when you’re looking to secure a patent. First, you’ll need to decide what sort of subject matter you’re trying to protect. This article will cover three of the main categories you can pursue: Abstract idea, Functional data, and improvements to an underlying computing device. In addition, you’ll learn about the three-step formula that you’ll need to follow in order to get your software patent approved.

Abstract idea

An abstract idea is a legal fiction that has little to do with the ordinary understanding of abstract. Patentees and patent attorneys disagree as to whether a certain invention qualifies as an abstract idea. This gray area includes innovations that are at the bleeding edge of research, but are crucial to the U.S. economy. For instance, quantum computing is much more difficult to patent due to the current interpretation of SS 101.

The Federal Circuit has ruled on this issue more than 100 times. At first, many commentators believed that Mayo should not apply to abstract ideas. Initially, the Patent and Trademark Office did not alter the analysis to abstract ideas, but the Court clarified its position in Alice. Although abstract ideas are often categorized as non-tangible, patentability requires some proof of their uniqueness. If you’re worried about the legality of a particular invention, you may want to consult with an attorney.

The new guidance from the USPTO provides more clarity on the definition of abstract ideas under Section 101. Companies have long struggled to obtain patent protection on ideas that have no tangible application. However, the USPTO recently released guidance on computer-related inventions that helps clarify this gray area. As long as the USPTO can keep this guidance updated, it will become easier to obtain patent protection for your abstract ideas. That’s good news for both parties.

If you’re not able to bring your abstract idea to conception, you can consider signing a non-disclosure agreement. This agreement will protect your idea from infringement in the event of a competitor’s use of it. In addition, you’ll have legal protection if no one else takes it to this stage. While patenting an abstract idea will not guarantee you a patent, it will give you a piece of mind and security against others using your ideas.

Functional data

When patenting software in the US, you need to consider the role of functional data. Patentable software should contain elements that transform an abstract idea into a patent-eligible application. These requirements are discussed below. Functional data are those data that serve to perform a specific task and do not preempt all applications. Functional data must be sufficiently described to be patent-eligible. However, you must be careful not to omit any important information.

In order to obtain patent protection for AI-related innovations, functional claiming is crucial. It provides more flexibility in describing the desired result of a software product without having to tie it to a particular software solution. However, functional claims are often expensive to prosecute and defend, and are not appropriate for all software products. Here are a few guidelines that will help you prepare a functional claim. You will be able to avoid common pitfalls that often arise when filing a software patent application.

The USPTO also gives more scrutiny to applications involving judicial exception. The USPTO puts more emphasis on assessing patent-eligible subject matter, but is less focused on other requirements for patentability. For example, USPTO examines abstract ideas, while EPO evaluates whether the invention has technical effect. As a result, functional data must be provided when filing a patent application in the US.

Improvements to underlying computing device

An important question to ask before filing for a patent application is whether improvements to the underlying computing device are novel enough to be patented. The courts have held that improvements to a computer are merely abstract ideas, not tangible improvements. The State Street policy has yet to be cited by this Court, but the principle would apply even when the invention is a purely functional change. For example, the State Street policy holds that improvements to a computer’s hardware, software, and methods to detect systematic errors are patentable.

Moreover, claims should describe a unique hardware configuration, not abstract ideas. The claims must relate to the computer’s underlying technology, not to finance or commerce. If an invention involves a new method, it should be based on a specific computer system. This way, a software patent can be patented without a technical breakthrough. For instance, an improved way to track movement in an airplane can be patented as an improvement to GPS.

In order to patent software in the US, developers should describe improvements to the underlying computing device. The best way to do this is to clearly define the processes and methods used in the invention. By identifying these processes and methods, an applicant can minimize the possibility of abstract issues. The USPTO has a manual for patent examination that summarizes the method. The USPTO has also outlined a method for determining whether the software is patentable.

However, the policy debate over “software patents” is riddled with misinformation and confusion. This misunderstanding has been exacerbated by a recent decision from the Federal Circuit in CLS Bank v. Alice Corp.. The Court’s one paragraph majority opinion threw patent doctrine into a tangle. The court’s ruling in Gottschalk v. Benson affirmed the Patent Office’s decision denying a patent on an algorithm for converting decimal numbers into pure binary numbers. The court looked back to 19th century decisions like O’Reilly v. Morse, which held that abstract ideas were not patentable.

Unlike other patents, software that is abstract in nature has to solve an existing problem in a novel way. To qualify for patent protection, a software invention must be “necessarily rooted” in computer technology and have claims that don’t preempt every possible use of that idea. This is a difficult step and is likely to be controversial. However, it can still be successful in the US if it meets certain requirements.

Patent-eligible subject matter

The first step in determining if your software is patent-eligible is examining its subject matter. Software inventions do not fall under the categories of natural phenomena or laws of nature. Instead, they are abstract ideas. However, if you have an idea that isn’t abstract, you might be able to bypass this hurdle. If not, there are additional elements to consider before determining whether your software is patent-eligible.

A computer software program may be considered patent-eligible subject matter if it is new and non-obvious, but it must also be unique. Software that uses algorithms is not likely to be patent-eligible subject matter. Often, a software program is a mathematical formula that makes it impossible to do the same thing as a hardware component. But in some cases, it is more than just a mathematical formula. For example, a software program that converts binary-coded decimal numbers into true binary numbers can be patent-eligible subject matter.

Despite the Alice-inspired uncertainty, the specter still haunts software patent applicants. In the wake of Alice Corp. v. CLS Bank International, the USPTO issued complicated guidelines for examiners that make overcoming subject matter eligibility rejections in software patent applications difficult. Even after four years of Alice, the patent landscape for software remains unclear and many stakeholders are scrambling to apply the new rules.

A claim that is patent-eligible can be categorized as a process, machine, manufacture, composition of matter, or design. However, it cannot be directed at laws of nature, natural phenomena, or abstract ideas. Patent attorneys can help you identify whether your software is patent-eligible subject matter. It is best to consult a patent attorney to determine if it is patent-eligible.

To qualify as patent-eligible subject matter for software, it must be new and not obvious to a person with ordinary skills in the art at the time of filing. Generally, software inventions are not patent-eligible if they automate manual processes. Thus, software patents must be carefully reviewed before a software invention is filed. Moreover, a software invention must be patented in the US to prevent it from being copied by competitors.