Can You Patent Software? A Practical Guide For Inventors And Developers

Can you patent software?

Software is an integral part of many modern inventions, from mobile apps to smart devices.

However, many inventors and developers wonder whether they can protect their software-related inventions with patents.

The answer is not straightforward, as software patents are subject to different rules and challenges than other types of patents.

In this article, we will explain the basics of software patents, the criteria for patentability, the benefits and drawbacks of patenting software, and the steps to follow to obtain a software patent.

Can you patent software?Courtesy:IAM
Can you patent software?

What is a software patent?

A software patent is a type of utility patent that covers an invention that uses or incorporates software.

The United States Patent and Trademark Office (USPTO) grants them, and they give the owner the exclusive right to make, use, sell, or license the invention for 20 years from the date of filing.

Software patents are different from design patents, which protect the ornamental appearance of an invention, and plant patents, which protect a new and distinct variety of a plant.

They are also different from copyright, which protects the expression of an idea in a tangible form, such as code.

What are the criteria for patenting software?

To be eligible for a software patent, an invention must meet four criteria:

  • It must be novel, meaning that it is not already known or disclosed by others before the filing date.
  • It must be useful, meaning that it has a practical application or benefit.
  • It must be non-obvious, meaning that it is not an obvious variation or combination of existing inventions or common knowledge.
  • It must be directed to eligible subject matter, meaning that it is not an abstract idea, a natural phenomenon, or a law of nature.

Software patents often find the last criterion, as many consider software inventions to be abstract ideas that do not qualify for patent protection, to be the most challenging one.

The USPTO and the courts have developed various tests and guidelines to determine whether a software invention is eligible or not.

What are the benefits and drawbacks of patenting software?

Patenting software can have several advantages and disadvantages for inventors and developers. Some of the benefits are:

  • Patents can protect the core functionality and features of a software invention from being copied or imitated by competitors.
  • Patents can generate income for the owner through licensing or selling the patent rights to others who want to use the invention.
  • Patents can enhance the reputation and credibility of the owner as an innovator and leader in their field.
  • Patents can attract investment and funding from investors who value intellectual property assets.

How to obtain a software patent?

To obtain a software patent in the US, inventors and developers need to follow these steps:

  • Conduct a prior art search: This involves searching for existing patents, publications, products, or services that are similar or related to the software invention. This can help determine whether the invention is novel and non-obvious, as well as identify potential competitors or infringers.
  • Prepare a patent application: Next,write a detailed document about the invention, covering its background, goals, features, benefits, examples, drawings, and claims. The claims are crucial as they set the boundaries of the patent rights. Make sure it’s clear, concise, and follows USPTO rules.
  • File the patent application: After that, send the patent application to the USPTO with the necessary fees and forms. You can choose a provisional (simple and cheaper but no patent yet) or non-provisional (complex and costly, but leads to a patent if it meets requirements) application.
  • Prosecute the patent application: interact with the USPTO examiner who reviews your application. They may raise concerns based on prior art or patent laws. Respond to their comments by arguing, changing, or fixing your application. This may take a while until the application is accepted or dropped.
  • Maintain the patent:Lastly,keep the patent active for 20 years by paying periodic maintenance fees at 3.5, 7.5, and 11.5 years from the grant date. The fees increase with time and vary depending on your entity’s size (large, small, or micro). If you don’t pay, the patent becomes public domain.

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