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Although there is a lot of ambiguity around computer-based patents, software-related inventions can certainly be patented if they meet the eligibility criteria. For instance, if your software is useful and novel in one way or another or it improves computer performance or overall efficiency, it can be patent protected. 

In short, your invention must be able to solve a technical problem to qualify for a patent. However, this is just a general description of criteria fulfillment. There are a lot more factors that play a crucial role in determining the eligibility for software patent protection. 

So can you patent software? This article answers all the questions that arise in your mind as a software inventor or entrepreneur. 

So let’s get into the details.

What is A Software Patent?

A software patent is a form of intellectual property protection meant to secure a novel process or algorithm related to software. Unlike copyright or trade secrets, a software patent is the best way to secure computer-related inventions, as it covers functionalities and features of code-based programs. 

Can Software Be Patented? 

Is software patentable? The simple answer is “Yes,” but as mentioned before, it relies on various aspects. Indeed software patents do exist, but due to a lack of legal awareness, they frequently find themselves at the center of controversies and legal battles. 

However, by taking the correct measures, you can successfully preserve 20-year-long patent protection. The eligibility criteria are similar to other technology-related IP, such as subject matter, novelty, usefulness, and non-obviousness. 

Moreover, you can even obtain a patent for the initial design and concept of the software; hence it’s not compulsory to complete coding to attain the protection. 

What Are The Types of Software That Can Be Patented?

If your software meets the following requirement, there is a strong possibility of obtaining patent protection: 

• It increases a computer’s capacity or security.
• It reduces the number of resources required for a process.
• It provides an effective solution for a computing challenge. 
• It contributes to the performance of an apparatus or machine.
• It improves “computer functionality,” such as speed optimization.
• It involves a well-defined process and obtains tangible and calculative results.

Hence, to meet eligibility criteria, you must explain how your invention improves your customer’s life by solving a real-world problem for them. To elaborate on these, you might need to break down your algorithm into several steps while drafting your patent application. 

Keeping all the above considerations in mind, you have good chances of patentability if your software invention falls into these categories:

Criteria for Patenting Software 

Here’s how to patent software while ensuring all the eligibility criteria. 

Eligible Subject Matter 

In order to pass the eligibility requirements for a utility patent, the invention should be either a process, a machine, or a composition of a matter. The software is considered closest to a “process,” so the court scrutinizes how subject matter eligibility criteria are applied. 

When a software patent examiner receives a software patent application, they first use a test based on the Alice Case to identify whether subject matter claims are patentable. Following that, they use other standards such as novelty, non-obviousness, definiteness as well as usefulness. 

Novelty

The software invention must be new and strictly shouldn’t be a copy of pre-existing software. Thus, the inventor must go through the “prior art” concept before applying for a software application. 

Prior art states that a creation, invention, or other IP already exists. Hence it helps determine the patentability of an invention and ensures whether a software invention meets the novelty criteria. 

Non-Obviousness

The United States Patent and Trademark Office has set a standard known as a Person Having Ordinary Skill in the Art (PHOSITA). If PHOSITA finds an invention obvious, it fails the eligibility criteria.

However, there is a lot of debate around what PHOSITA finds obvious, and it also varies with the art category. A PHOSITA in software-related invention would be a computer engineer, software developer, or programmer. 

Usefulness

To be qualified as a non-obvious invention, software must be a unique as well as useful invention. As a matter of fact, the usefulness aspect is the most important one as it determines how much value the invention adds to the user’s life. 

For computer-related inventions, the Federal Circuit evaluates the software using the “Concrete-use-tangible-result” test to identify the invention’s patentability. The test makes sure that the software produces abstract, tangible, and useful results. 

How Can You Patent a Software?

Before pursuing computer-based software patenting, you must ensure that your invention meets all eligibility criteria. Following that, you must perform a comprehensive patent search to ensure no similar invention exists in the market. 

Once you have everything sorted, you are all set to proceed with the patent application drafting. It is highly suggested to seek expert help at this stage. Moreover, your application should be well-crafted and must include a technical description, including diagrams, flow charts, etc., to provide a clear picture of your idea. 

Additionally, there should be strong claims to prove the scope and utility aspect of your invention. Once your patent application is completed, you need to file for the application in the USPTO office. 

Tips for Navigating The Software Patent Process 

Collaborating with A Patent Attorney

Getting software patent protection can be complex and require a deeper understanding of prerequisites and concepts. Therefore, hiring an experienced software patent attorney helps you draft a winning application.

Given that, collaboration with a legal professional increases your chances of obtaining a patent. 

Conducting Thorough Prior Art Searches

Henceforth, you must conduct a thorough patent search using the USPTO database before applying for a software patent. The official USPTO Patent Full Text and Image Database give you deeper insight into the prior art. 

Utilizing your prior art search, you can craft a strong description that successfully describes how your invention is unique and valuable. 

Drafting Strong and Clear Patent Claims

Your application must contain solid patent claims regarding the novelty, usefulness, and non-obviousness of your computer-based invention. The specifications must be able to explain the claimed subject matter in an effective manner. 

Again a patent attorney can assist you throughout the process and help draft robust claims to ensure effective patent protection. 

Monitoring and Enforcing Software Patent

Obtaining a software patent is insufficient to ensure foolproof protection for your invention. You must constantly perform thorough monitoring to detect the potential threats of infringements. 

When you identify that your invention is likely to be infringed upon, immediate action must be taken to prevent the theft. The enforcement itself is a full-fledged process that involves various strategies and typically starts with sending cease-and-desist letters to the infringers. 

Final Thoughts

Can you patent software? The answer is “Yes” if your invention meets the eligibility criteria successfully.

The software patent process is time-consuming and requires much research and expertise to formulate a robust application. However, considering the benefit and two decades of protection, the process is worth the effort. 

Patent protection not only secures your invention from infringement but also gives you an edge over the competition. Otherwise, competitors might steal and utilize your unique features for their applications.