When Can You Get a Patent on Software?
When can you file for a patent for your software? There are several factors you should consider. If your idea is abstract, you may not be able to get a patent for it. Other factors include: the level of technical detail in your patent application. Is it a computer program? How will the patent affect the developer’s ability to use the existing software? If it’s software, you may be able to get a patent on it later, but it’s best to get started early.
Is it an abstract idea?
Is software an abstract idea? The Federal Circuit recently upheld a district court decision, saying it is not. A computer program, or software, is a non-tangible idea that does not need to be embodied in a physical product to be patentable. Although this ruling is significant, the precedent it sets is not. The Alice ruling, which invalidated the Alice patents, is still important. This ruling makes the patentable nature of software even more murky.
Historically, the patenting process has been very conservative, and this has made software a difficult area to navigate. Nonetheless, there are some areas where software may not be able to benefit from a patent. For example, laws of nature are not patent-eligible. But there is no clear-cut answer when other inventions will fall into this category. While this USPTO action may be intended to send a message to Congress and the courts, no guidance is imminent.
While the Alice ruling is a major step towards patentability, it also leaves room for confusion. There are still many questions about what constitutes an abstract idea. In essence, a patent application must not be directed to an abstract idea and must contain elements that transform it into an actual invention. The Supreme Court provided little guidance on what constitutes an “abstract idea” and what level of detail is required to transform it into a useful invention.
The Federal Circuit also clarified that an abstract idea is an idea that is embodied in a physical product. During its recent decision on the Symantec Corp. v. SAP Am., Inc. case, the Federal Circuit cited a specification for a computer program, which was an abstract idea. In this case, the claim was not based on any actual product, but rather on a mental process performed in a computer environment.
Software has a particularly difficult time when it comes to abstractness. The Supreme Court has held that a process can be a mental one, but that does not mean that the algorithm itself is abstract. As a result, the Federal Circuit has routinely upheld software patents, and the USPTO has issued hundreds of thousands of software patents. This decision could have far-reaching implications for the future of software patents.
Level of technical detail in the patent application
The patent application for software is particularly tricky, because it must provide sufficient technical detail to claim the invention. It must explain how the claimed algorithm works, and it must show that the applicant actually possessed the claimed function. Otherwise, the patent claim would be invalid for lack of adequate written description. This article offers additional detail on the subject. The key points to keep in mind are:
First, software patents must be novel and non-obvious. 99% of software is not new and non-obvious, which means that patenting software is an impediment to innovation. As noted by Brad Feld, there is an extensive list of reasons to oppose software patents. Many developers and techies argue that software patents hamper innovation. After all, 99% of the world’s software is not novel and non-obvious.
Second, the application should be directed to a field of endeavor, and should recite concrete technical steps in achieving the claimed result. For example, computer apparatus claims don’t provide enough detail to achieve the claimed result. However, claims for computer methods should be directed to the method of achieving the result, not to the apparatus. Third, international jurisdictions have their own laws and case law relating to the patentability of software and business methods. Consequently, a high level of specificity and the use of a technical problem/solution framework are helpful in international patenting.
The first consideration in patenting software is to determine whether the idea has enough technical detail to protect its usefulness. If the invention involves integrating a user’s audio signal into a video game, for example, the application should recite sufficient enablement in order to protect it. Similarly, if the invention is not functionally specific, then the patent application may be rejected. This is important to keep in mind since an applicant can’t exclude a specific application if the idea falls outside the scope of the patent.
Is it a computer program?
A human program is a written language, like English, that instructs a computer to print out “Hello, World!” on the screen. A computer program can be as simple as two lines of instructions. These instructions are often called program source code. They can be created by writing computer code. In some cases, human programs are also referred to as computer programs, but most are not. Here’s an example:
A computer program is a collection of instructions, written in a programming language, that a computer can execute. A program is often designed by a computer programmer and can perform a variety of tasks. This information is used to create a variety of applications, from word processing to internet browsers. Many people have never heard of a computer program, but are familiar with the term because of its widespread use.