Can You Patent Software?

In the U.S., an inventor can patent a unique business model, something that has only been possible in the last few decades, with the increase in e-commerce, computer technologies and the like.

Computer software often falls into this category, and although software is in some sense conceptual, it is concrete enough, when properly documented and explained, to be patented.

The short answer, then, is that you can patent software. But because of the complexities involved in software technology, it’s an area of patent law that is strongly debated today. Intellectual property law is still striving to keep up with technology, and in the last few years, software patents have gained a greater spotlight in the IP industry.

In 2011, software patents made up the majority of all patents filed in the U.S., marking a noticeable shift in computer innovation. By contrast, less than 25 percent of all patents issued in 1991 were software-related.

Patenting Computer Software

As per the U.S. Patent and Trademark Office (USPTO), there are things that cannot be patented, including laws of nature, abstract ideas, which includes mathematical formulas. This is where software patents become hazy: they are often based on formulas, algorithms and other scientific processes in the form of coding and programming.

But software isn’t the abstract concept itself, but rather, represents the application of these concepts and formulas in a practical, concrete manner. That’s why software can be patented: it’s the precise way in which formulas and technologies are used to reach a specific result or function.

The software can apply formulas, coding and programming to create something that is useful, tangible and novel, which are all required in order to be granted a patent.

Put in another way, it’s not the means that’s being patented (the coding behind the software), but the end result of a cohesive software that performs a specific operation.

The Problem with Software Patents

As software patents have gotten more common in the last decade, so has confusion surrounding their very definitions.

A September 2013 article in the Washington Post states that the problem with software patents arises “because software is inherently conceptual. Software is a technology that represents broad classes of interactions abstractly. That makes it inherently difficult to tie down a software patent to a specific inventive concept.”

Many software patents use definitions that are too broad, employing vague language and descriptions that could apply to many types of software in many industries. For inventors, this presents challenges that are unique to software inventions.

How to Patent Software

They key for inventors, then, is being able to fully and succinctly describe the technologies, process, formulae and programming that constitute the foundation of the software. This involves working with the software developers who worked directly with the software, and documenting the processes as they operate internally – that is, from the perspective of the software, not necessarily its end user.

Inventors must be able to express how the software operates within the larger context of its hardware and technology. They must also be able to pinpoint and explain the specific operations and processes that come together to result in the software’s main function.

Even with proper documentation, software patents are still not always clear. The Government Accountability Office claims that this description of “emerging technologies, such as software, may be inherently imprecise because these technologies are constantly evolving.”

Getting Your Software Patented

As you can see, patenting software is a complex process that involves challenges specific to software technologies. If you need help getting intellectual property protection for your software, contact the IP team at JacksonWhite Law.

Our experienced team can help you explore your patent options, and develop a protection plan that ensures the security of your best ideas.

Call attorney Steven Laureanti today at (480) 426-8397 to discuss your patent and IP needs.

 

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