A software invention does not require hardware outside of a computer. The software program itself causes the computer to work in a new way. This makes the software implementation patentable. Likewise, the software that enables the computer to do something new may be patented subject matter. If you want to patent a software-implemented invention, you need to understand the requirements for a software patent. Here are some tips to help you decide whether or not it is patentable.
What is a Software Patent?
Software patents are property rights that protect computer programs and any computer program’s performance. Software patents are a type utility patent without a legal definition.
Requirements for a software patent
Software must meet certain criteria, just like any other invention.
- This invention is unique and new. It is not obvious to someone with average industry skills.
- The invention can be used in an industrial or commercial manner. This means that the software can be used in conjunction with a machine. This means that you aren’t trying to patent “pure business methods,” which is a process that occurs in your head.
- It must inform a person skilled in each art how to make and use the invention
The software must be new and unique
In order for software to be patentable, it must be new and improve on a well-known mechanism. Simply doing something known on a computer is not patentable, and software needs to have some added features to make it unique. The Supreme Court has provided little guidance on what constitutes an “abstract idea” and what additional elements need to be included in an application to transform it into a patented invention. The two-step process discussed below lays out the criteria for determining whether a software program is patentable.
Software is not a tangible object, and therefore, a patent cannot claim benefits to a customer. The process itself must be unique. It must also be technical, and cannot be described by another person. This means that software needs to be different from the rest of the market. A software patent may only be granted to a software developer. This means that software must be new and unrivaled by other products in the same category.
There are many ways to make software patentable. One way to do this is to conduct a patent search on the subject of your invention. By performing a search, you can identify which aspects of your software are unique, and which aspects you can expand on to include additional features. Additionally, you can find out whether your claim is sufficiently broad. This step will help you determine whether your application qualifies for patenting. If it is, it will be granted by the European Patent Office.
To ensure your invention is unique, you must first ensure that it is both novel and functionally unique. This means that it can’t be an exact copy of a previously-disclosed design. Furthermore, software patents must not be obvious to consumers. If you want your software to be patentable, you should make sure that it is novel and does not have an obvious similarity with other products. Once you have identified this, you can then decide whether it is unique or not.
It must solve a problem that is “necessarily rooted” in computer technology
In deciding whether software is patentable, the Supreme Court articulated two basic requirements for eligibility: an invention must be a solution to a problem that is “necessarily rooted” in computer technology and not be an abstract idea. Those requirements do not preempt every possible application of the invention. Instead, they specify that the claimed invention must “radically” change the way computers perform tasks.
In the end, however, the DDR court determined that this software patentable solution addressed a business problem, the failure of a website to retain visitors. Despite the technical hurdle, the DDR solution was a highly effective way to increase website traffic. Furthermore, it solved a problem that is “necessarily rooted” in computer technology.
The DDR case was the only decision on whether software inventions could be patented. However, the Federal Circuit ruled in Enfish v. Microsoft, 1244 (2015), that software-related inventions can be patented if they solve a “necessarily rooted” problem in computer technology. The Enfish case has since reopened the patentability debate.
In addition to applying the SS 101 test to software, the Federal Circuit has taken a similar approach. Its recent decisions on SS 101 have upended the law, requiring patent claims to clearly disclose a “necessarily rooted” problem in computer technology. Further, a software invention must be sufficiently specific to avoid pre-emption.
It must inform a person skilled in each art how to make and use the invention
For a software patent to be enforceable, it must tell a person skilled in the applicable art how to make and use the software. It is important to cite references to support this assertion. Whether software is useful in a particular field is a separate question. While many cases infringe on software patents, the Federal Circuit has cited a few case-law examples that suggest this requirement can be met.
Software patent application process
Define your Software
You can patent a piece or software you create. You should be able to define the overall design of your invention down to the last detail. This will allow you and your patent attorney to get the best protection for your software. These are some questions you about your software.
- What’s unique about my software?
- What function is my software supposed to perform?
- How does software handle information?
- How does the user interface look?
- What problems can my software solve?
- Which parts of my program should I patent?
You will need to look at your invention from multiple perspectives when you file a software patent application. It will be necessary to view it from both the point of view of an end-user and a computer. It must also be viewed from an architectural, systematic perspective.
Perform Research
Do a patent search before you begin the patent process. This allows you to find similar programs and gives you clear insight into what makes your software unique. This search will help you determine if it is worth the effort to obtain a patent. You won’t get broad protection if there are many patents covering programs similar to yours. It may not be worth the time and expense involved in patenting.
If you want to patent research properly, keep in mind the costs involved. It is necessary to search patents to determine if your product would be considered an infringement.
Patent research can be complicated. It is important to work with your lawyer throughout the process. You should receive a comprehensive report on any patents that might be relevant to your invention at the end of your search. This information will help you complete your patent application.
Filing the Application
These are the parts of a solid software patent application:
- Description of the system where your software operates
- A flowchart that gives an overview of the software’s functionality.
- Flowcharts that provide more details on how your software will achieve its goal.
Flowcharts can help you and your audience understand your invention better.
Trust Your Attorney During application
You will be guided through every step of the process by a qualified lawyer. When you are drafting your application, your attorney can be a great help. Because once you file your application, it’s difficult to modify it. These claims are crucial because they describe the parts of your software you want the patent protection to cover.
It is less likely that the USPTO rejects your application if you and your attorney collaborate on it.
Exceptions to patentability of software
The underlying principles in determining the scope of patentability in software are the same as in traditional patent law. To qualify as patentable software, a product or process must not be directed to a law of nature, a natural phenomenon, or an abstract idea. While the Supreme Court does not define these terms, science and philosophy have provided valuable guidance. Natural complexity is one avenue that scientific philosophers can explore to help clarify these questions.
Mental processes are also part of abstract ideas and cannot be patented. In fact, claims that recite mathematical formulas will fall under this category. For example, if a computer program calculates the force of an object by multiplying its mass and acceleration, the claim would not fall under the category of an abstract idea. Further, a claim that relies on a mathematical algorithm is not patentable, because it could be performed mentally without any physical machinery.
Patent laws have long prohibited inventions that exploit the laws of nature. Hence, the patent office has consistently held that a new invention must be directed to a law of nature, a natural phenomenon, or an abstract idea in order to qualify for patent protection. This rule is interpreted to allow new technology to benefit from the patent system, if the product can satisfy the requirements of novelty and nonobviousness.
While this rule may seem harsh, it does not address all of the possible uses of a software product or process. The Supreme Court, in Bilski v. Kappos, found that the “law” in question was not a law of nature, but rather an abstract idea. The resulting case demonstrates that this rule does not apply in all cases.
As an example, a recent case in the Federal Circuit held that claims in a new software product were not patented because they were not directed to a law of nature or a natural phenomenon. In contrast, a federal district court held that the claims directed to an abstract idea were based on a fundamental human activity-the act of voting.
Software Patents: Issues
Here are some reasons software patents are so hotly debated:
- US law says that abstract ideas are not protected by patents. However, this is not always true. It is unclear what an “abstract Idea” means in cases where business-related ideas can be patented.
- There is no widely accepted distinction between non-patentable and patented software on the global marketplace. Software, for example, cannot be granted patents in the European Union. However, the matter has been discussed again and efforts have been made to standardize instructions throughout the EU.
- Technical and legal programs may hinder innovation and Patentability.
Problems arise because the US patent law applies to all types of inventions. Software is unique from other innovations due to its short life cycle. Most software is only financially viable for a few year. Sometimes, it takes longer to obtain a patent. In these cases, the effort is often not worthwhile.
Software is unique in that it allows developers to continue creating even if they don’t get a patent. Copyrights and Trade Secret Protection might be enough to motivate you to invent even if a patent is not possible. Open source software is a great example of how software can continue to exist without any intellectual Property protection.
Software is also unique in the patent world because patents can be too broad. Software is also difficult to describe in exact terms.