What is Patentable in Software?

A good way to decide what is patentable in software is to consider the improvement it offers over an existing mechanism. A computer program that merely does something that is well-known on a computer is unlikely to be patented. However, software that improves the functionality of a computer or reduces the number of computers necessary for a specific task may be patented. Here are some examples of software that might be able to satisfy these requirements.

Abstract idea

In the case of a software patent, an abstract idea cannot be made into a patented product by implementing it into a computer program. Such claims merely recite generic steps to implement an abstract idea. To patent a software invention, the claim must be more than an abstract idea. The claim must also define a new and improved method for performing a particular computer operation, not simply a process. This distinction is important when determining whether to file a patent application.

While the USPTO narrowly defines the subject matter that qualifies as an abstract idea, the Federal Circuit and Supreme Court have purposely left the term “abstract idea” ambiguous. That is because these courts have consistently refused to define the term, despite its significance to the patent eligibility test. As a result, the resulting decisions have been subjective and arbitrary. As a result, it is difficult to draw any meaningful distinction between abstract ideas and patented software.

While the Alice framework is generally the first step in determining whether an abstract idea can be patented in software, patent examiners have also been using this framework to help determine whether a software invention is genuinely a product. A claim may be rejected if it is simply an abstract idea incorporated into an actual software application. For example, an abstract idea could still be incorporated into a software product if the claim contains a functional feature that can improve the user’s experience.

Claims to a device profile are not patentable because they do not describe how the invention performs the functions. A general-purpose computer may do this task, but it is a patent-worthy method. In the case of software, the claim should be directed to an improvement in the computer memory storage system. Further, the claims should not be based on an abstract idea of categorical data storage. The abstract idea should be able to achieve the desired functionality.

In case of an abstract idea, the Federal Circuit has applied the test of whether the idea is patentable. In the past, abstract ideas could be incorporated into computer software. However, this rule has recently changed. In a recent decision, the Federal Circuit has expanded the scope of patent-eligible subject matter to include business methods. However, the Supreme Court refused to reinstate the patentability of business methods. Thus, it is vital to carefully review the scope of an abstract idea to determine if it qualifies for protection.

Inventive step

The inventive step rule determines whether a new product or idea can be patented. It prevents people from making patents for old, common ideas and helps create new ones. Inventive step rules allow people to get money for their ideas and stop companies from copying their products, but it is important to keep in mind that your product must be a significant improvement over a previously known product or idea. Here are some reasons why you should follow the rules for software patentability.

EPO examiners look for a problem-solution approach. This approach requires that the claimed process causes a technical effect when executed on a computer. The technical effect must be far beyond the usual physical interactions between the software and the computer. In addition, the claimed process must not have been known to a person of ordinary skill in the art, and it must not be obvious to one who has no technical knowledge of the subject matter.

While software often evolves incrementally, it can also be novel or inventive. In the case of CII, the first step in assessing the invention is the distinction between technical and non-technical features. In some cases, the invention may be purely computational and the invention may be a result of an analysis of how computers operate internally. However, it may still be difficult to apply the doctrine of ‘analogous use’ to a software product.

The Federal Court discourages retrospective analysis of a patent, and asks applicants to provide a statement about the ‘inventive step’ involved. Such a statement provides a basis for determining obviousness. The Federal Court also interposes a hypothetical addressee and appropriate prior art to support the concept of novelty and inventive step. Further, this statement also provides a basis for assessing whether a product was novel and useful.

A software product that is obvious to others in the same field is not a patentable invention. It is a public disclosure of some kind. Its implementation may be obvious to a skilled person in the relevant field, but there must be some novelty. The inventive step should be sufficiently different from existing products. However, software patents are often difficult to analyze because of the large number of different applications for the same invention.


One of the most difficult challenges for any inventor is determining whether an invention is patentable. This requirement is vague and may prove to be a greater hurdle for patent applicants. As Guest Scholar at Brookings Institution Ben Klemens explains, “[i]nsignificant postsolution activity will not transform an unpatentable principle into a patentable process.” As an example, a new circuit design for implementing logic would be a non-obvious physical device. If upholding this rule would eliminate most business method patents.”

In order to qualify for a patent, an invention must meet the requirements for “useful,” “novel,” and “non-obviousness.” These are legal terms that have very specific meanings under federal law. Even an invention that meets the legal criteria for “non-obviousness” may not be patentable because of its novelty or utility. This is where the expertise of a skilled intellectual property attorney comes in.

To be patented, software must be novel, useful, and not obvious to a person with ordinary skill in the art at the time of filing. The software must also be tied to a machine. The software must be unique and distinct from existing software. However, software patentability is often a more difficult task than it sounds. As with any other field, software must be distinctly new and unobvious.

However, a recent Supreme Court decision re-defined the criteria for patentable software. The case was Alice Corp v. CLS Bank International, wherein the court framed patent eligibility under 35 U.S.C. 101. The case hinged on how much of the abstract idea was disclosed to the USPTO. This case established a new standard that is more favorable to software inventions.

Software patents have drawn criticism from developers and critics. Several pre-Alice software patents were obvious to developers, including Amazon’s one-click shopping patent. However, the patent system functions best when software inventors can rely on common sense. This principle relates to both the obviousness requirement and to novelty. It’s also important to keep in mind that if your invention is obvious, it may be patentable.

Business method

When is a business method patentable in software? There are some questions you need to answer when filing for a patent. Patented business methods must provide a new and unexpected result. If a business method is already in use, there is a risk it might be patented before it can be implemented. In these cases, patent owners can seek an injunction against infringers, which can help them avoid a loss of revenue.

A business method is patentable subject matter in software if it provides a new and improved way to make a product or service. To qualify, a business method must satisfy a usefulness requirement, which is a relatively low threshold. The method must also produce a tangible result. The patent must also show novelty and non-obviousness, which is often determined by examining the natural evolution of similar methods.

As with all business methods, the test for patentability is based on the difference between a business method and a technical product. In the US, a business method will be deemed novel when it meets the requirements of utility, novelty, and non-obviousness. In the EPO, however, business methods will not be deemed novel if the steps of the business method provide a technical result. In the EPO, mathematical results cannot be patented because they cannot be interpreted as technical.

In Bilski v. Kappos, the Federal Circuit rejected a requirement that business methods must be tied to a machine or transform articles into an abstract form. While the court accepted this reasoning in the majority of the case, it rejected the machine-or-transformation test as not being a non-exclusive test, rejecting categorical rules that would exclude abstract concepts from patent protection. Nonetheless, in the case of software, the Federal Circuit has yet to rule on the ‘tangibility’ requirement.

The Federal Circuit has proposed that business methods and software be exempted from patent protection. But there is still indirect protection for computer-implemented inventions. In this case, the innovation is a process that can be implemented in software, not a physical object. However, it must have a tangible connection to a computer or tangible architecture. As such, the Federal Circuit’s proposal is unlikely to withstand scrutiny.