Can You Patent Software? (+ Exploring What Makes an Invention Patentable)

You're probably here for one of a few reasons:

• You're a software developer.
• You've recently funded a software project, and you're looking to protect it.
• Or you just want to learn more about patents.

Whatever your reason, you've come to the right place. 

In this article, I'll be going through exactly whether you can patent software and, if so, what the nuances are.

Let's get started:

What makes an invention patentable?

Several key criteria dictate patent eligibility:

(1) An invention must be novel

An invention is considered novel if it wasn't disclosed anywhere before the filing date of the patent application.

Depending on the jurisdiction, if the inventor discloses the invention publicly before filing a patent application, this may disqualify the invention from being patented.

Some countries may have a "grace period" that allows for a patent application even after public disclosure.

Disclosures can include:

• Written or oral descriptions,
• Sales,
• Or even an online post.

Any medium that makes the invention accessible to the public potentially compromises its novelty.

(2) An invention must be inventive and non-obvious

The non-obviousness criterion is judged from the perspective of a hypothetical person “skilled in the art.”

This means someone who is knowledgeable in the technical field of the invention.

Many inventions are improvements or modifications of existing products or processes.

The invention must display a surprising or unexpected feature that isn't obvious from existing knowledge.

(3) An invention must have a practical application

The invention must be/have the following:

• Specific,
• Credible,
• And substantial utility.

It's not sufficient for the invention to be theoretically possible; it must also have a demonstrable practical application.

Certain types of inventions in some jurisdictions, such as software algorithms or business methods, have specific criteria to meet utility requirements.

(4) An invention must be legal and moral

Inventions that are harmful to public order or morality (e.g., devices for gambling or fraudulent purposes) may be denied patents.

And, increasingly, environmental impact is also a consideration.

So, inventions that are significantly harmful to the environment may face scrutiny.

(5) An invention must be eligible

Different countries have different rules about what types of inventions can be patented.

For example, some countries don't allow patents on genetic material or traditional knowledge.

In addition:

Generally, the invention should have a technical character.

Mere abstract ideas, mathematical methods, or artistic creations aren't patentable.

(6) An invention should be sufficiently disclosed

The patent application must disclose the invention in a manner sufficiently clear and complete.

This is so that it can be understood and replicated by a person “skilled in the art.”

In some jurisdictions, the inventor is required to disclose the best method for carrying out the invention.

(7) An invention application must be clear

The patent application must clearly and concisely define the matter for which protection is sought.

Understanding these criteria is crucial for inventors and companies to safeguard their inventions effectively.

The patenting process can be complex and often requires professional guidance, such as from a patent attorney.

They can navigate the legal intricacies and prepare a robust patent application much more likely to succeed.

(Curious already? Check out Trademarkia to see how we can help you protect your intellectual property.)

Is software patentable?

So now that we understand what is required for anything to be patentable, what about software inventions? 

Can you patent software? 

Does what makes a patent eligible vary from jurisdiction to jurisdiction?

Let's explore:

Software patentability in the United States

In the US, when it comes to patenting software, the main question is whether the software is part of an invention that does something more than just use a basic concept, natural law, or abstract idea.

Many successful software patents frame the software as part of a more extensive, innovative process.

For example, software that results in improved digital signal processing might be patentable by the Patent Office. 

Unfortunately, the US has faced issues with vague and overly broad software patents, leading to controversies and legal battles over what has become known as “patent trolling.”

A recent patent trolling case highlighting the issue involves Mycroft AI, an open-source project developing a voice assistant named Mark II.

Mycroft AI was victim to a patent troll, Voice Tech Corporation, which led to significant financial strain on the company.

Although Voice Tech Corporation eventually dropped the litigation, the legal battle drained Mycroft AI of funds.

This case exemplifies how patent trolling can severely impact smaller, often non-profit, organizations.

Patent trolls, or non-practicing entities (NPEs), typically don't develop or sell products that utilize their patents but use patent infringement claims for profit or to stifle competition​​.

Software patentability in the European Union

According to patent law, a software invention must demonstrate a "technical character" to be patentable in the EU.

This means it must use technical considerations to solve a technical problem.

Software controlling:

• Industrial processes,
• Specific methods of operating computers,
• Computer-implemented inventions that process data representing physical entities could also be patentable.

Pure business methods or algorithms that don't have a technical application are typically not patentable.

Software patentability in other regions

• Japan and South Korea: These countries have relatively liberal approaches to software patenting, often allowing patents for software that contribute to solving a technical problem.
• India and China: They have unique guidelines, with India being more restrictive in granting patents for computer-related inventions unless they demonstrate a technical advancement.
• United Kingdom (UK): In the UK, software patentability is nuanced. While software as such is generally not patentable, software that forms part of a technical solution to a technical problem may be patentable. The key factor is the presence of an inventive technical contribution beyond the software's normal physical interactions with the hardware on which it runs.

Specific questions regarding patentability

Let’s explore some common questions pertaining to patentability: 

Can you patent software code?

Patenting software code can be complex, as patents generally cover inventions that offer a technical solution to a technical problem. 

The code itself, being a specific implementation of an idea, might not be patentable. 

However, if the software code embodies a novel and non-obvious technical solution, it could potentially be part of a patentable invention.

Can you patent software ideas?

Patenting software ideas can be challenging because patents typically cover the application of ideas rather than the ideas themselves. 

In many jurisdictions, a patentable software invention must demonstrate a specific, technical application and solve a technical problem in a novel and non-obvious way. 

Abstract ideas, like algorithms or business methods, are generally not patentable unless applied in a new and inventive technical process.

Can you patent a software algorithm?

Patenting a software algorithm can be complex and highly dependent on the jurisdiction. 

In general, an algorithm itself, being an abstract idea, is not directly patentable.

However, if the algorithm is part of a larger software system that solves a specific technical problem in a novel and non-obvious way, it may be eligible for a patent.

Challenges in software patenting

Despite your jurisdiction, there are several challenges that you should consider when considering patent eligibility:

• Determining the "inventive step": Differentiating a genuine inventive step from a routine or obvious development can be challenging, especially for software.
• Rapid technological changes: With its longer examination and approval times, the traditional patent system may struggle to keep up with the fast-paced evolution of software technologies.
• Overlapping patents: Given the collaborative and iterative nature of software development, multiple patents can claim similar or overlapping scopes, leading to complex legal disputes.

Are there alternatives to patent protection?

If patent protection is unavailable to you, what alternatives do you have? Let's explore:

• Trade secret protection: This involves keeping important information about the product or process secret. A famous example is the Coca-Cola formula. The key advantage is that trade secret protection can last indefinitely as long as the secret is not disclosed. However, it offers no protection against independent discovery or reverse engineering.
• Copyrights: Copyright protection can be an alternative for creative works like software, art, and literature. It protects the expression of ideas (like the code in software or the text in a book) but not the ideas themselves. Copyrights are automatic in many jurisdictions but don't cover functional aspects of inventions.
• Trademarks: These protect brand names, logos, and other identifiers that distinguish goods and services in the market. While trademarks don't protect the product itself, they can be vital for building and maintaining brand value and recognition.
• Contracts and non-disclosure agreements (NDAs): Through contracts and NDAs, parties can agree to keep certain information confidential or to use it in specific ways. This can be useful in business partnerships or employee relationships.
• Utility models or “petty patents”: In some countries, utility models provide shorter-term protection than patents and are easier to obtain. They are suitable for incremental innovations that may not meet the patentability criteria.

Should you protect your software with a patent?

Deciding whether to pursue software patent applications involves weighing several factors and considering the specific context of your invention and business strategy.

Consider that:

A patent in a highly competitive market can offer significant protection and be a valuable asset.

It can prevent competitors from copying your innovation and provide leverage in the market.

Patents can also be useful for attracting investors, who often view them as a sign of a serious and protected innovation.

However:

The process of obtaining a patent can be costly and time-consuming.

Analyze whether the potential benefits outweigh these costs.

Consider the lifespan of your software in the context of the fast-paced nature of the software industry.

Sometimes, the market relevance of software can change more quickly than it can in the patent process.

And:

Align the decision with your overall business strategy.

If collaboration and widespread adoption are more valuable for your business model (as in the case of many open-source projects), seeking a patent might not be the best approach.

How do you file a software patent application in the US?

The patent application process in the US generally involves several key steps:

• Application preparation: This involves determining the type of intellectual property protection needed, ensuring the invention is patentable, and conducting a search to see if the invention has already been publicly disclosed.
• File your application: You can do this through the United States Patent Office (USPTO) with the assistance of a registered patent attorney or agent or on your own. It involves preparing the patent application, which may be provisional or nonprovisional.
• Application prosecution: After filing, the application undergoes an examination process by a patent examiner, who reviews the application for compliance with patent law.
• Receive your patent: A patent is granted if the application meets all requirements.
• Maintain legal protection: This includes paying maintenance fees to keep the patent in force.

Learn more: get a full overview of the patent filing process on our blog. 

When in doubt about software patents, contact a patent attorney.

So now that I’ve answered the question “Can you patent software?”

And considering the complexities involved:

It's advisable to consult with a patent attorney who specializes in software patents to get tailored advice based on your specific circumstances.

Ultimately, the decision should be based on a thorough analysis of your situation, balancing a patent's potential benefits against its costs and limitations.

Ready to file a patent? Check out Trademarkia’s Patent Express to get in touch with a patent attorney. 

Further resources

• Can You Patent a Recipe? Yes! Let’s Explore How.
• Why Startups Should Patent Now, Not Later: Our Strategy
• How Long Does it Take to Get a Patent? (+ Your Questions Answered)