A patent can be filed for a computer program, an improved format or layout of data, or the graphic interaction with a computer program. Patentable software must meet certain legal requirements to be eligible for the protection of a software invention. Listed below are some examples of software that may qualify for patent protection. This article discusses some of the most common software patent applications. There are many more categories that software developers should be aware of.
- What is a software
- Criteria for software patentability
- List of patentable software
- Computer Program
- Improved format or layout of data
- Using conventional components in an unconventional way
- Graphical interaction with a computer program
What is a software?
The U.S. Patent and Trademark Office (USPTO) grants patents on software, which can be a very valuable tool for protecting your intellectual property (IP). The USPTO defines software as “a set of coded instructions or statements in a particular form that tells a computer what to do.”
Criteria for software patentability
Patenting software is a complex area of law, and it’s not just about the code. In fact, you can’t patent an idea for a software product; you must have a specific implementation to be able to claim your invention as your own.
Software patents are controversial because they may hinder innovation by allowing big companies to use their patent portfolios as weapons against smaller competitors. However, they can also protect developers from being copied by larger firms that would otherwise steal their ideas or products.
Patents are issued by the U.S. Patent and Trademark Office (USPTO), which determines whether an invention meets all the requirements for approval before issuing a patent on that invention. The USPTO does not issue any kind of intellectual property designation for software; instead, it issues design patents for physical objects such as a chair or an iPhone case that incorporates part of Apple’s operating system — and copyright protection for works of original authorship fixed in any tangible medium of expression, including software code
Software is patentable if it meets the statutory requirements of novelty, non-obviousness and usefulness; however, the courts have held that computer programs are similar enough to mathematical formulas that they should be eligible for patent protection.
Software is patentable subject matter under 35 U.S.C. 101 if it meets the following criteria:
- Is novel;
- Is non-obvious; and
- Has a useful application in industry or commerce.
List of patentable software
1. Computer program
The English patent law recognizes that a computer program can be patented. However, not all computer programs are eligible for patent protection. For example, a program that plays a song may not meet the requirements of patentable industrial applicability under U.S. patent law. For a computer program to be eligible for patent protection, it must offer a new technological solution or meet the requirements of the Paris Convention, which governs industrial property rights. In order to qualify for patent protection, a computer program must perform a new and useful technical function.
Computer programs can be patented if they perform certain functions that are unique to that software. The software must advocate inventiveness to be eligible for patent protection. It should not be a mathematical formula or algorithm. A computer program may be patented for its algorithm, but not its implementation code or copying algorithm. A patent provides a much stronger protection for software than copyright does. For example, a thermostat control algorithm may be patented under patent law.
The Federal Circuit, which oversees patent matters, has decided whether a computer program can be patented. In the past, computer programs were not deemed patentable because they were mental steps and not a machine or process. The Federal Circuit has since decided that computer programs are patentable if they perform an action in the real world. Therefore, software that manipulates real world values is a potentially patentable invention. However, there are other factors that determine whether a software program is a patented product.
Before pursuing patent protection for software, the software inventor must conduct a search for conflicting software. It is crucial that the applicant avoids overlapping patents that already exist. Further, the inventor should seek the help of an attorney. A patent application should be accompanied by flowcharts and illustrations showing how the algorithms of the program work. The software is intended for use by the licensee. The licensee may have to make fair use of the software, or the software could be in conflict with laws.
2. Improved format or layout of data
Software patents are a popular form of intellectual property protection. Among the goals of software patents are to create and distribute new programs and data formats that improve the user experience. Patenting these improvements is difficult because of the vast amount of competing software. However, software patents can be effective in achieving these goals. In this article, we will discuss how software patents are different from traditional patents.
3. Using conventional components in an unconventional way
The Supreme Court recently ruled that certain software is not patentable, but certain claims may be. To qualify, however, a claim must be directed to a method, system, or computer component that is unconventional. Although these components may be conventional, there can be a technical improvement to the computer’s performance. The court has made this distinction clear in a number of recent decisions. Here are the main factors to consider before submitting a software patent application.
4. Graphical interaction with a computer program
The PTO’s examination process for design patents is not limited to patentability. In some instances, a design patent can claim novel design elements, but its practical use is not a good analogy. The courts are essentially gatekeepers to protect social welfare. Although the analogy is not universal, it is applicable to some design patents. For example, design protection is similar to copyright protection of graphical user interfaces, functionality, and infringement.
The patentability of GUIs is a balancing act. Since a computer program is a materialization of software, it is unlikely to be a movable article. However, a design patent can protect a user interface’s design, but not the surface ornamentation. The resulting distinction between function and expression is not a clear one. Further, designers should consider the broader scope of a design patent before pursuing it.
Currently, most software patents are of the “utility” variety—producing new machines, new tools for business, or new methods of doing business. Software patent litigation also appears relatively rare. Most large enterprise software companies have established patent cross-licensing programs to protect them from patent trolls and other competitors. But smaller businesses and independent software developers tend to worry about the power that large corporations have over them in terms of patent law.