Can a software be patented? The answer is yes. This is a common misconception. Although the codes are not patentable, functional aspects of software are.

It’s possible to patent inventions implemented in software. However, there’s a condition: that the invention solves technical problems. Although this is the same as any other technical field, it draws more attention in software because the law surrounding patentable inventions isn’t always kind.

For more information, read on. Here are some of the most important factors to consider in patenting a software. These criteria include the level of technical detail, novelty, and abstract idea.

What is a software patent?

Software patents are patents that provide computer performance enhancements through the use of computer applications.

Software patents cover standalone computer programs, mobile apps, and software that is embedded into a machine. Software must comply with all other types of inventions in order to be patentable.

Patent protection is governed by the following criteria:

  • The subject matter must be patentable.
  • The invention should be industrial in nature.
  • Patentable ideas must be original and not existing. It is important and significant to consider the difference claimed between an existing item and the innovation.
  • Formal patent standards must be met for the disclosure of an innovation.

It is difficult to determine the patentability of your software. The Supreme Court established a two-part test to determine whether a piece or software is patentable in the case Alice.

  1. Are the claims in dispute directed at an abstract idea?
  2. Are the claims sufficiently inventive to transform the claimed abstract idea into patent-eligible applications?

If the patent application focuses on a generic process, such as data collection, automation, analysis, and display, it will not meet the patent eligibility requirements. It will be rejected under 35 U.S.C. Section 101.

software code

factors to consider in patenting a software

Before you start the patent process, it is important to first ask yourself: Is my software eligible for patenting? It is important to be honest about your software and ask a simple question: Does it solve a technical issue? Here are some of the most important factors:

#1. Abstract idea

Software is classified as an abstract idea according to the United States Patent and Trademark Office (USPTO). It can be difficult for software to be granted a patent. However, patentability may be possible if the software is written as a process. The USPTO has several criteria for determining whether an idea can be patented. These criteria can be interpreted in a variety of ways. The purpose of the Alice-Mayo test is to create a more rigorous definition of patentable ideas, and to restore the eligibility law to how it was before the Court of Custom and Patent Appeals (CCPA).

The 2019 Revised Patent Subject Matter eligibility Guidance synthesizes and extracts key concepts that have been identified by courts as abstract ideas. The guidelines were inconsistent, and individual patent examiners often applied them differently. They are expected to improve the trust in the patent system. They do not cover every abstract idea, so patent applicants should consult an attorney before filing. This may take a while, but the process will go smoother. In the meantime, patent applicants should be sure to keep these new guidelines in mind. The following are abstract ideas grouping:

1. Mathematical concepts

The grouping of mathematical concepts is made up of mathematical relationships, mathematical formulas and equations, as well as mathematical calculations.

These “mathematical concept” were identified by the Court as judicial exceptions because a mathematical formula  as such is not protected under our patent laws. Therefore, ”the discovery of a mathematical formula cannot be used to support a patent unless some other inventive concept is included in its application.

2. Certain methods of organizing human activity

These fundamental economic principles and practices they include hedging, insurance, mitigating risks; commercial or legal interactions (including contracts; legal obligations); advertising, marketing, sales activities or behavior; business relations; managing personal behavior or relationships between people (including teaching, social activities, and following any rules or instructions).

3. Mental Process

A mental process (thinking) which “can be performed by the human mind or by a person using a pen & paper” is considered abstract idea by the courts. According to the Federal Circuit, “methods that can be performed mentally or are equivalent to human mental work are not patentable abstract ideas. They are the ‘basic tools for scientific and technological work’ that are available to everyone.

The laws regarding patents, trademarks, and copyrights are incredibly complex. They are the result of centuries-old traditions and codes. The U.S. Patent Act of 1970 is the first patent statute, and the O’Reilly v. Morse case established that an abstract idea can be patented if it is used in a specific way. The Gorham Company v. White decision, on the other hand, created a foundation for tests pertaining to design patent infringement.

The Alice test requires a detailed analysis of the claims made in the patent. An abstract idea can be patented if it improves the capabilities of a computer. If it is a software application, then it must satisfy the Alice test and be able to be used to control and condition access to data. If it is not, it cannot be patented. An abstract idea can be a business idea, which is why it is so important to use the Alice test in patent litigation.

#2. Novelty

Patenting software requires much more than conventional activities. It requires novel features. Inventiveness and novelty are essentially the same, but there are subtle differences. This is where software patents fall short. The main criteria for software patent eligibility are new and useful features and a prior art base. Despite this, software patents should not be dismissed simply because of this difference. Instead, they must meet both requirements to receive a patent.

A significant difference between a software patent and a non-software patent lies in the method of evaluating their novelty. Both methods have a point of novelty. In software patents, novelty requires the product to solve a practical problem. An example is Amazon’s patent on a “1-click” shopping system. In a traditional patent case, an in-depth analysis of the prior art helps the court assess obviousness.

If the product solves a problem “necessarily rooted in computer technology,” it may be eligible for a software patent. In either case, software should have claims that do not preempt every application of the solution. But software patents are a complex decision for company leaders. A little knowledge never hurts! The Forbes Business Council offers free resources to help business owners and entrepreneurs assess the pros and cons of securing a software patent.

A patent’s novelty is measured by whether the invention is new in some way or has been available to the public. The test of novelty is very difficult to reconcile with the notion of meaningful coverage. Many inventions do not meet the threshold of novelty, so patent holders must prove that they are innovative in order to be granted a patent. So, how can software patents be useful? Here are some examples:

Software patents should be novel enough to be deemed eligible for SR&ED. Examples of software patents include a self-referential lookup table, which improves database system memory configuration, and cellular software that archives digital images. The main point of software patenting is to protect innovative work. Unlike software patents, SR&ED doesn’t begin with the claims. It must also be sufficiently patented.

#3. Non-obviousness

The Alice v. CLS Bank decision has created a myriad of inconsistent interpretations concerning non-obviousness and software patentability. While the USPTO has tried to narrow its interpretation, it has yet to reconcile its contradictory results. The FTC has therefore called for a clear and simple non-obviousness standard. The key issue here is how to best distinguish software from software-based innovations.

When considering whether an invention is patentable, it must meet certain requirements. These requirements include being useful, novel, non-obvious, and sufficiently described. Those criteria are discussed in the preceding section of this article. For software, these requirements must be met in order for an invention to be patentable. Ultimately, the claim must meet all five requirements to be protected. The first two requirements were addressed in the Patentability Overview.

The non-obviousness requirement is difficult to explain, especially when it involves subjectivity. Further reading is recommended to gain a better understanding of how the patent examiner determines whether an invention is obvious. A skilled patent attorney can help you determine whether your invention is obvious. They will be able to provide guidance on this complex issue. You can’t afford to wait for a decision. In any case, patents can be a valuable investment.

The United States Federal Trade Commission has identified a tangle of overlapping patent rights and recommends stricter legal standards. Australia, meanwhile, continues to align its testing approaches with those of the United States, increasing the threshold for obviousness in favor of the patentee. This approach does nothing but introduce many layers of obscurity and create an artificial position far removed from reality. It also has the potential to limit trade.

As a result, software patents have become a lucrative way to extract licensing fees from companies and individuals. The goal of the software patent is to give the owner of a patent the right to control the supply in the market. Patents also increase the value of a company, as a published patent portfolio deters and slows potential competitors from entering the market. It also makes a business attractive for acquisition.

#4. Level of technical detail

Patent eligibility requirements for computer software are different in the USPTO, EPO, and JPO. The USPTO has stricter requirements than the EPO, which are a bit ambiguous. If you want your computer software to be patented, use more technical terms and stay updated on recent precedents. The European requirements, on the other hand, are much more ambiguous and are largely interpreted by case law.

To avoid your computer-implemented invention being rejected substantively by the USPTO Examiner because it is too “abstract” in 35 U.S.C. Section 101. It is important to include both the technical difficulties others have faced prior to your invention as well as the inventive technical improvements made by your software in your claim. By doing so your ideas can be protected against being copied or used in the development of a competitor’s product. Although the code may not be patentable, it may still be possible to make the software as long as it passes the eligibility test as described on Alice test .


Although patenting software is a complex process, You should not be discouraged if your idea is new, useful and non-obvious.

A registered patent attorney with expertise in software patents can help you determine whether your software is patentable. Then you should consult a patent attorney to get more advice on whether you want to pursue software patent protection.

PatentPC is the premier digital intellectual property platform, and it has top IP experts including software patent attorneys, ready to help you protect your ideas. Contact us