Industries

SOFTWARE PATENT

Introduction

Mobile application development is a growing industry in today’s digitally connected, tech-savvy world. The mobile experience is all around – almost everyone has a mobile device or platform that allows them to have instant and constant access to the internet. Many businesses are creating mobile apps for their business because of the amazing versatility of a mobile app platform. Companies can now market themselves to customers directly through mobile apps running on their smartphones and other IoT devices that are connected to the internet.

A user-friendly mobile app is one of the best ways for companies to connect with their customers, maintain valuable customer relationships, cut costs, and reach new potential customers. Software and mobile applications are valuable business assets that should be protected by intellectual property rights such as patent protection.

Software developers often seek patent protection for the software’s process. Your software app may be patent eligible if it does more than just calculate, track data, or render a user interface. Also, the software invention must be original and not obvious. But software patents cover more than just mobile apps. Software patents can cover a computer software program, a mobile device app, a web app, or software that is integrated into a larger system or a mechanical device.

General Patenting Considerations

In general, the United States Patent USPTO has established five elements for patent eligibility: (1) The invention must be a process, machine, or object; (2) It must have utility; (3) It must be novel or new; (4) It must be non-obvious; and (5) It must not have been published or available to the public before the patent application.

Two types of patents are particularly applicable to mobile app and software inventions: utility patents and design patents.   Utility patent applications last for 20 years from the date of the patent application. Design patents last for 15 years from the date of the patent application.

Software Design Patents

Design patents can be granted for novel ornamental features of software interface designs and can be used to protect Graphical User Interfaces (or GUIs for short). GUIs can be graphical icons, animations and visual indicators, among others, that help users to understand the many features of the program. 

The requirements for design patent protection of GUIs are as follows:

  • New and Novel. Common to all patents, design patents are only granted for designs that are new and not obvious versions of existing designs.
  • Article of manufacture Requirement. Any man-made device that contains a picture, design, or other tangible material can be an article of manufacture. Standalone the GUI design is not an article of manufacture, but when it is displayed on a mobile device or computer, the GUI becomes an article of manufacture protectable by a design patent.
  • Ornamental Design.  The design patent protects ornamental aspects of the article of manufacture with functional features.  The design cannot be solely dictated by function, or utility aspects of the article.  As such, the ornamental aspects of the GUI must not be linked to its functionality.
  • If a particular design is needed for functionality, it will not satisfy the ornamental requirement as there would be dependence between them. In order to be patent-eligible, one must consider whether the designs are independent and not dependent on each other in order for them to be eligible for law protection. If you want to protect the GUI’s functional aspects, a utility patent should be applied to provide protection for its functionality. Depending on the situation, you may be possible to apply for both design and utility patent applications for the same product.

Software Utility Patents

While design patent protection is available to protect ornamental aspects of the user interface, functional aspects should be protected through a utility patent. A software utility patent covers algorithmic methods and processes and can be obtained by focusing on the following:

  • Improvement to another technology or technical field;
  • Improvement to the functioning of the computer itself;
  • Effecting transformation or reduction of a particular article to a different state or thing;
  • Adding a specific limitation other than what is well-understood, routine, and conventional in the field, or adding unconventional steps that confine the claim to a particularly useful application; or
  • Exhibiting other meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment.

In general, you need to teach others how the invention can be implemented. This can be done through flowcharts, pseudo-code, timing charts, and state-transition charts, among others. Sometimes pseudo-code can be used to describe complex algorithms. Flowcharts are the most common way to do this, but screenshots illustrating the operation of the software can also be used.

Claim Software Ranging from Broad Claims to Picture Claims

Patentability can be granted to software if it is new and not obvious, and if it is claimed as a method or improvement on existing technology. There are two types of claims in patent applications: dependent claims and independent claims. Independent claims are the broadest version of a patent application. Dependent claims seek to narrow down the invention by adding limitations or features to the claimed invention. It is a good strategy for seeking protection for independent patent claims that have a broad scope. Broader independent claims can lead to greater protection and capture a wider pool of potential infringers.

The process of narrowing down claimed inventions through dependent claims has a purpose. Dependent claims can also be used to make it easier to identify the invention. A picture claim, when combined with the claims it depends on, helps to define the invention and covers your commercial product. This will make it difficult for others to copy the product once you have the patent issued.

Having a broad range of claims provide you with the breadth and diversity of claim coverage to ensure you have the best chance in dealing with infringers who want to copy your go-to-market strategy.

Software with Artificial Intelligence (AI) Capability

Artificial Intelligence (AI), a transformative technology, has the potential to impact our economy and society in amazing ways. Our firm is a key player in protecting innovation and emerging technologies (e.g., AI, synthetic biology and blockchain), and maximizing these innovations’ widespread effect to improve competitiveness and economic prosperity as well as national security and solve global problems.

Patenting AI technology involves extra work to address subject matter eligibility and disclosure requirements for AI inventions. Various steps in the AI processing chains can be patentable.

For example, novel improvements in neural network architectures may be patentable. Patents may be granted for new neuron connection structures for networks or new combinations of networks such as Perceptron, Feed Forward Neural Network, Multilayer Perceptron, Convolutional Neural Network, Radial Basis Functional Neural Network, Recurrent Neural Network, LSTM – Long Short-Term Memory, Sequence to Sequence Models, or Modular Neural Network, for example. Novel combinations of input layer, hidden layer, and output layer may be patentable.

Also, consider the training steps that are novel. For example, novel on-the-fly training updates that improve accuracy with real-time data updates may be patented. You may want to explore patenting novel methods that organize data in a specific manner to improve training speed, or unique methods to generate training features that improve processing speed. You can patent the use of a particular loss function in a particular application that leads to a non-obvious speedup improvement.

You may also consider novel aspects of applying AI models to your specific application. Look for your configuration of the AI model that leads to improvement to the functioning of the computer itself. Also, look for how your deployment of AI effects the transformation or reduction of a particular article to a different state or thing. Other areas to consider are how your specific arrangement adds a specific limitation other than what is well-understood, routine, and conventional in the software field, or how you add unconventional steps that confine the whole arrangement to a particular useful application. You can also patent features exhibiting other meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment.

Open Source AI Issues

Open-source AI is a growing segment that benefits both developers and businesses. About half of businesses currently use open-source technology for AI/ML and this number will continue to increase.

Open source AI refers to artificial intelligence technology that is freely available for commercial and noncommercial use under various open licenses. These include:

  • Open-source datasets: AI software can be trained using data. In open source AI, both the test and training data are free. These datasets are available even if you don’t use open-source AI software. They will help you make your models more reliable, and more accurate.
  • Open-source algorithms: The algorithm and its core statistical model have been made freely available. They are typically available as open-source algorithm libraries. You can use them as-is, train with enterprise information, or modify the code to create custom AI applications.
  • Open Source UI: This open-source interface allows you to leverage open source AI efficiently. These interfaces can be anything from simple command-line interfaces to complex GUIs. A UI overlay could be created that uses a different algorithm library and does not contain its own.

While open-source AI implementations are popular, if you use these models, you can still patent unique applications of open-source AI. For example, if you use open sourced computer vision code in a novel arrangement to detect breast cancer, the combination of how to tweak the open source model, how you configured the data/feature extraction, and how to train and update the model in the context of breast cancer detection can be patented.

It is crucial to have a patent lawyer that understands your invention’s technology. This includes both the medical device aspect as well as the software component. Our firm has obtained numerous AI patents. We can help you obtain patent protection for your AI invention.

Software in Web 3.0 / Blockchains

Web 3.0 is is a decentralized version of Web 2.0 that emphasizes openness and greater user utility. It is distinct from Web 2.0 which was built on centralized system. The Features of Web 3.0 include:

  1. 3D Graphics and The Metaverse. Web 3.0 allows many sectors to connect with the Metaverse virtually by using 3D design.
  2. Artificial Intelligence. Artificial Intelligence will become more sophisticated and computers will be able to understand and interpret human actions and speech in the same way as people in Web 3.0. This will allow computers to recognize information more easily and offer users a more personal experience.
  3. Connectivity. With Web 3.0, information is more connected because of semantic metadata. The new connectivity will allow users to access all information and provide a new level for communication.

Web 3.0 offers increased privacy and security. It uses cryptography to secure users’ data. Blockchain technology also allows for safer transactions between users. It can create an immutable record of transactions and activity that can be used to verify authenticity.

Web 3.0 allows users to interact with other websites and users. Users can now access content from multiple sources simultaneously, without leaving the site they are currently on. This allows for a flexible design since websites can be redesigned in order to look different in different parts of the world or countries.

Web 3.0 has a greater global reach with more interactivity and flexibility.  It is crucial to have a patent lawyer that understands Ethereum and blockchain technology. We have patented blockchains that create a trusted, unfilterable, uncensorable repository of data and information that is accessible worldwide. We can help you obtain patent protection for your blockchain and Web 3.0 inventions.

Software in Medical Devices

Over time, medical devices have become more software-based. These medical devices, which were originally mechanical in nature, can now be computer-controlled and operated using artificial intelligence. Every day, more people are using smartphones to track their health and connect with wearable medical devices wirelessly. It was only a matter time before software would become a medical device.

Software that meets these requirements can be considered a medical device by the US Food and Drug Administration (FDA). It can also be patentable. Software that can be considered a medical device (SaMD), is software that has information that is significant to making a healthcare decision. It also has an “independence” level, meaning that the software should be able to run on any general-purpose computing platform. The software should, at minimum in theory, be capable of performing its medical task without its “normal” hardware/housing.

It is crucial to have a patent lawyer that understands your invention’s technology. This includes both the medical device aspect as well as the software component. Our firm has practices in medical devices and in software and mobile apps. We can help you obtain patent protection for your medical device invention.

Fixed-Fee Software Go-to-Market Protection

We have a dedicated IP practice to assist mobile app developers at PatentPC. Our IP practice for mobile app developers helps clients to create the right IP strategy and then help them to implement it by seeking patent protection or other IP protections, as required. Don’t let your valuable software IP go unprotected. We can help you with all your options.

We will do everything we can to lower costs for our clients. We offer most of our services for a fixed price to meet their budgets with clear objectives.

For more information about our services, call us at 800-234-3032 or schedule a strategy meeting with us.