Patents are a big part of software. Most of us don’t know how to go about the process of patenting the software we build. While it is a bit complicated, this article will take you through each step involved in the process of patenting a piece of software.

First, is software patentable?

The answer to the question is YES. A patent granted prohibit others from using, selling, or offering the invention covered by his or her “claims”. These claims are analogous with the legal description real estate.

Patents can protect many types of computer software in the United States, including mobile apps and Software as a Service (SaaS apps). This was not always true. In the 1960s, conventional wisdom was that computer programs were generally not patentable. In the 1970s and 1980s, the Supreme Court addressed the issue three times. First, it concluded that most software was copyrightable and not patentable. Then the Supreme Court indicated that anything man-made under the sun qualifies for patent protection, provided it meets all other patent requirements under Sections 102, 103 and 112, among others.  Most recently, the 2014 Alice decision changed the rules about what software was eligible. Software is currently patentable, provided it is not directed at an abstract idea without more. 

Today, software patents can be obtained to protect a wide range of methods, processes, codes or programs. Software can be viewed as scripts, programs, or applications or simply any code that runs within a system, a game or social media application. Software patent can protect the software itself, as well as its library, user interface, and algorithm. In addition, a patent can cover any technological aspect that enables a computer to carry out an essential function. This is the main reason why many people turn to the patent law for protection. For example, Amazon’s one-click-to-buy button was patented in 1999 and is still the most popular software product in the world. Software is one of the most important subjects to patent, but it is also an area of uncertainty in U.S. patent law. Proper preparation can help ensure strong software patent. To prepare effectively for the patenting process, it is crucial to carefully analyze current patent law and decide what might qualify as a patentable innovation. The process requires careful consideration of how to frame the invention in the claims.

Unlike copyrights that protect only the expression or implementation of the code, software patents can broadly protect a novel and unobvious concept by capturing methods of carrying out the same function in a different way. You can improve your chance if you can show details on how the software invention works and how your software improves computer performance and how you claimed with specificity your new software invention to not pre-empt the field and block everyone.  That said, you can still be specific and protect your unique selling point and get protection under the patent system!

Developer Objections to Software Patents

In some cases, a software patent can cover an algorithm, computer program, library, or user interface. Due to the popularity of software, software patents can potentially tie up every computer user and developer.

Many open-source software developers are anti-patent.  However, open-source is not a simple ideology. It is an army of lawyers and developers fighting for free and open-source software. Opponents of software patents argue that:

  • Software is math – A program is the restatement of an algorithm in particular programming languages.  Since every programming language (Turing-complete) implements Church’s lambda calculus according to the Church-Turing thesis, a program is the transcription of a mathematical function, and since patentability is not possible for math, patentability is not possible for software either.
  • Software encourages patent thickets – Patent thickets form a dense network of patents that developers need to decode in order to create new software. One innovation may be protected by multiple patent owners, or a product may have several patents. Patent thickets can lead to increased difficulty in innovation, complicated cross-licensing relationships between companies, and discouragement for newcomers entering the software industry. While excluding software from the patent system would discourage some software innovations, the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost. Thus, software hinders research and development of new software solutions.
  • Hinders innovation – The Electronic Frontier Foundation’s Defend Innovation white-paper concluded that many over-broad software patents are being awarded, which is actually stifling innovation. Interoperability is thought to promote innovation, and patent systems have the potential to block the development of such technologies.
  • No evidence to suggest that software patents have any positive effect on innovation, and furthermore, the system primarily encourages failing monopolists to inhibit competition by blocking innovation.

From the beginning, the battle over code ownership would define open-source movement over the next decades. The Microsoft vs Linux battle was perhaps the most famous early example of such a fight.

As the center of this movement to counterbalance the tech giants, the Open Invention Network (OIN), was created. Developers would need to work together if software were to be free. They fought a war with Microsoft to get open licenses. It was not about ideology. OIN used its hundreds of patents as leverage to hold Microsoft in court for many years. More than 750 patents were cited, which includes intellectual property donated and more than $100 million spent on acquisitions and defense. OIN is still a weak player despite these numbers. Microsoft eventually caved, and OIN’s surrender marked a turning point in open-source software history.

Open-source licenses can be very limited and fragile. MongoBD is a famous example of what could happen to a strong technology that has weak protection. MongoBD, an open-source document database software, was so popular that Amazon took it and made it a closed-source program. This was legally legal. Amazon created every functionality of the software and marketed it as their own: Amazon DocumentDB.  In other words, anyone can legally copy OSS technology in closed-source products that have 100% identical functionality.

Software patents work better than copyrights. Patents are able to protect both the functionality (APIs), and the underlying technologies. If they can be used and implemented, all of these are worth patenting.

Benefits of obtaining a software patent

The U.S. is one of the leading countries for software industry with one third of the $5 trillion global information technology (IT) market, making it the largest tech market in the world. The industry accounts for $1.9 trillion of U.S. value-added GDP (more than 10 percent of the national economy) and 12.1 million jobs.

In the software industry, the ability to protect an innovation with a patent is a vital tool for startups. Without the protection of a patent, smaller companies can’t compete with larger companies. Even startups with strong technical skills and a solid product idea may find it difficult to survive against big tech companies. Consequently, securing a patent is crucial. A software patent can be the difference between success and failure.

Obtaining a software patent is an expensive process, and startups should understand the value of their products before they spend their money. While many founders do not consider patenting, you should look up the example of Phhhoto v Meta.  There are reasons why major software companies file patent applications to protect their inventions. Sartups should remember that software patents are first and foremost business assets. While many businesses can benefit from a software patent, the patent system can also be used strategically to limit competitors. It may also be beneficial to cross-license your software with a competitor and gain access to their technology. In the end, a powerful patent portfolio can keep you out of patent infringement lawsuits and prevent retaliatory actions.

When to Not patent your software

Obtaining a patent may not be necessary in all cases.  For example, if you have a faster way of training your learning machine, this technology is all done in secret and no one knows about how you train your AI faster, then you should consider trade secret protection

An analogy is KFC’s “blend of 11 herbs & spices”, which is the secret recipe used to make its Kentucky Fried Chicken.  It is one of the most recognizable trade secrets. People have been trying to find or duplicate this secret recipe for years without success. It is possible that Jay Jones, Chicago Tribune, shared the secret recipe in August. Jones stumbled upon what appears to have been the recipe while researching a story on the origins of the franchise. Jones spent time in Kentucky with a nephew while he was looking through old scrapbooks. A last will and testament from his aunt (the second wife of the Colonel) was found in a family photo album. A handwritten note was found on the album’s back. It contained a document entitled “11 Spices – Mix with 2 Cups of White Fl.” that lists 11 different herbs and spices. Although the coincidence is amazing, it is not clear if this is the secret recipe. Neither the Colonel’s nephew nor the company seem willing to admit that this is the case. Many people claim to have found the recipe over time, including a couple who bought the house of the Colonel and claimed they discovered it. Later, the company sued them to keep the secret recipe.

This story highlights a few important aspects of trade secret law. Trade secrets are things that have commercial value and are not generally known. They can also be subject to secrecy efforts. If trade secrets can be kept secret, they can be extremely valuable and last for almost indefinite time. Once a secret is revealed, it is no longer valuable. Even the most rigorous security measures can be compromised by unforeseen circumstances, as the KFC story shows. KFC claims that it uses a vault to protect the Colonel’s handwritten recipes. It also uses other measures such as two suppliers to prepare the spices and herbs so that no one person or entity can know the whole secret. They didn’t foresee that the recipe would be found in a family scrapbook, or that a historian might stumble upon it.

In contrast, a patent is open to the public, and they are free to read and learn, but if they use the concepts in the patent, they need to take a license or obtain permission from you.  As software is a process, obtaining a patent for it will protect your invention. The results of your software and the functionalities it enables are the main ingredients for obtaining a patent. Even if software is simple and easy to copy, it will still benefit you to protect your work with a patent. If you have a new idea that isn’t obvious, a patent will protect it and give you control on how others use your idea, even if you decided to open-source the code.

Before you apply for a patent

The first step is to develop a minimum viable product, or MVP, of your software. A MVP is a working version of the software that has certain features. It allows the developer to test the software and collect feedback.  Before you release your MVP, do a provisional patent application to get the earliest possible protection for your idea. It also allows the developer to decide what can be further developed and what cannot. This approach also considers the life cycle of the software. Depending on the software’s functionality, patenting the MVP can help the software survive the entire life cycle.

If you’re considering patenting a feature of your app, there are several things to keep in mind. A provisional application grants you twelve months to develop the MVP of your app and includes the term “patent pending” in the product. With modern requirements under the Alice test, you should include as much of the programs/ algorithms description as possible to meet the Section 112 requirements.  You can also show how the software enhances computer performance and having an attorney experienced in getting numerous other software patent applications past examination at the USPTO can be extremely helpful.

Provisional applications cost less than non-provisional patents and allow you to file priority and international applications in the same year. However, they have a few drawbacks, mainly in that they are just placeholders and not examined until converted into a non-provisional utility application. 

If your invention involves the use of software, filing a provisional patent application may be the first step in getting a software-related patent. It can be difficult to navigate the process of filing a patent, but there are some things you can do to make the process easier. First, fill out the provisional patent application form, which describes your invention. Unless you have an attorney, this application only protects the subject matter that you disclose in the application. Also, make sure to pay the required fee. The fees can range anywhere from seventy-to-280 dollars, depending on the year and the size of your company.

After submitting your provisional patent application, you’ll need to decide which countries you want to file in, as well as pay the fees to each country. If your invention has no commercial value in the United States, filing a provisional patent application will give you a priority date that is several years ahead of any other competitor’s. Secondly, you must check if your invention is new and unique. You can do this by searching the United States Patent and Trademark Office (USPTO) database or the World Intellectual Property Organization website.

A provisional patent application will not give you a patent; instead, it will grant you a temporary shield while you prepare a non-provisional application. This means that it’s easier to file a patent than a regular application, and will give you more time to assess the commercial value of your invention. A provisional application will also start the Paris Convention priority year, which gives your invention more protection.

Chances of getting a patent

Patents give you the right to prevent others from using, copying, selling, or importing your software without permission. Patents enable you to protect the software for a pre-determined time period to ensure that you are able to compete.  You can use your invention in your own startup, and you can also license your patent to others or sell it. This could be a great source of revenue for your company. Some businesses are only in it to collect royalties from patents they license – sometimes in combination with registered designs and trademarks.

To get a software patent, in addition to the eligibility tests detailed above, your app must have one or more novel features and non-obvious process. If an existing app already has a similar feature, it’s highly unlikely that yours will be patented.  The first problem with patenting a feature of an app is that you need to convince the patent examiner that the claims are novel and non-obvious. If you’re concerned that a feature you’ve developed may have been patented by someone else, you can try to check whether it’s already available in the market

Patenting software can be expensive and time-consuming. A good lawyer will help you navigate the patent process and will provide guidance. And remember, patent protection can’t guarantee you a successful app – patents don’t grant broad protection for your idea. However, you can protect your idea from being aped other competitors by filing a patent application.

If you’ve ever wondered how to patent your software, you’re not alone. Many software developers are seeking ways to protect their creations. However, there are many factors to consider before you file a patent application. For one thing, your invention must solve a technical problem. This means that your invention cannot simply be a “remix” of an existing piece of conventional software. The second factor is the level of technical detail you must provide in your patent application.

The USPTO recently issued revised guidelines for patent eligibility aimed at avoiding Section 101 rejections. These revised guidelines rely on the latest cases from the United States Supreme Court and U.S. Federal Circuit Court. The guidance makes clear that a claim with a judicial exception can be patent eligible if it integrates into a practical application.

The chance of getting a patent for software depends on the quality of the invention (such as the novelty and non-obviousness as presented in the claims) and the writing of the detailed description section of the patent application. An effective patent claim should highlight the engineering solutions to the technical challenges. The claims must be narrowly tailored to claim the particular pain point cured by the invention.

Software patents are also patentable, but the process requires more than routine conventional activities. For instance, software that increases the speed and capability of a computer, or if software that increases computer performance in data compression or security, such software will likely be patentable.

Obtaining a patent for software is a highly complex process. The process is different for different software and the criteria to apply for a patent are different. Next, we will discuss the criteria for software patents and the challenges that you might face. Read on to discover the process and costs involved.

Improve your odds with knowledge of the prior art

A patent requires that the software is new, useful, and not obvious to ordinary people in the industry.

Before drafting your patent application, you should first conduct a patent search. The purpose of this process is to identify prior art pertaining to the invention. This knowledge will help you craft your patent application. You should also include any commercial products that use your invention, as many software companies market their products without patent rights.

Obtaining a software patent can be a challenging process, as software is constantly evolving. The process for filing a patent application can take years, and many entrepreneurs opt not to pursue the process. It can be expensive, time-consuming, and even difficult to describe your product effectively. There are many reasons why you should hire a software patent attorney to assist you with the process. Here are some of the most important factors to keep in mind.

One of the most common problems with software patent applications is defining the invention. The Commissioner of Patents and courts have attempted to limit the number of patents granted to software. One example of a software patent lawsuit is the “one-click” ordering system, which Amazon used to sue Barnes & Noble for infringing on the patent.

Before you begin your search, make sure you understand how the USPTO classification system works. There are numerous fields and classifications within the USPTO. Spend some time becoming familiar with these classification systems and advanced search techniques so that you can narrow your search down to relevant references. Once you know how to navigate the system, you’re ready to move on to the next step: drafting your software patent application.

If you have already created a prototype or have some ideas for a new product, you can use the USPTO public search facility to find existing and issued patents related to your invention. You can also contact the Patent and Trademark Resource Centers in your area for help. These centers often have trained staff who can assist you in your search. You can also use the Electronic Official Gazette to browse patent filings from most major patent-filing countries. You can also browse patents issued under the Patent Cooperation Treaty.

It’s essential to research relevant patents before filing your software patent application. Professional patent searchers use this information to identify similar software and technology. They know the patent classification better than inventors and patent attorneys, so they’re more knowledgeable about it. Also, they can help you navigate the patent filing process by guiding you through the patent language. Lastly, they can provide you with the necessary IDS form or online link to submit your software patent application.

In sum, before you apply for a software patent, you should first perform a patent search to see if your idea has already been patented. The process of drafting patent applications is costly and can lead to wasting time and money if you don’t do a thorough search. Patent searches can also save time and money. A software patent search can save you a lot of time and money. In addition, software patents last for about 20 years.

Basic requirements

To get a software patent, you need to have an idea. Your idea must involve more than mere extra-solution activities. It must also play a major role in the achievement of the intended goal.

Even if the source code of your software doesn’t match the original program, you can still get a patent for it. You also need to have a proper business plan for your software. In addition, you need to have a solid product roadmap.

There are four basic requirements to get a software patent. First, your invention must meet patent eligibility requirements. In other words, your software must be novel, useful, and non-obvious. This requirement is similar to the inventive step requirement in international applications. Once you meet all four, you can start filing for a patent. Read on for more information. If you think your invention meets the eligibility requirements, apply now!

You need to have a good description of your invention. The description must be as detailed as possible, and your application must tie the claimed software to the technical benefits. You should seek professional help with this aspect since it is not easy to make any changes after you file the patent. A software patent attorney will know exactly how to interpret patent claims to make them as clear as possible. If you’re unsure, hire a patent attorney to guide you through the process.

In the US, software patenting is routinely done by the FAANG companies who are always the top 20 patent grantees every year.  So, patents are valuable to these companies, yet many startups need to be convinced that the work will be worthwhile.  To qualify, your software must perform certain novel, unique, and non-obvious functions. Whether you’re developing an app for your company or writing a novel piece of software for a client, your software should have at least two of these qualities. You need to prove that your software performs an innovative function that is not obvious to the average user in your field. Your application must be thorough and contain a disclosure that meets USPTO guidelines.

Further, your claims need to be strategically done so that it protects you just at the right angle.  If too narrow infringers can find ways to design around, and if too broad the courts can invalidate.  For example, in IBM v Zillow, the appeal court invalidated two IBM patents because they claimed abstract ideas that are ineligible for patenting under 35 U.S.C. Section 101. With respect to the first patent, the Court explained that the claims are directed to the abstract steps of “presenting a map, having a user select a portion of that map, and then synchronizing the map and its corresponding list to display a more limited data set to the user.” In addition, the Court found that the claims do not add any inventive concept to the abstract idea because the claim “limitations use functional language, at a high level of generality and divorced from any computer technology, to recite the claimed functions.” With respect to the second patent, the Court held that the claims are “directed to the abstract idea of organizing and displaying visual information.” The Court also concluded that the claims do not add any inventive concept to the abstract idea because the claims “merely used well-understood, routine, or conventional technology (a general-purpose computer) to more quickly solve the problem of layering and displaying visual data.”

Steps to prepare for the patent application

A software patent is very similar to a regular patent, so the steps to get one are the same. In addition, the application must be filled with the usual information and requirements that apply to regular patents. Make sure to include good flowcharts to illustrate each step of your process. Detailed descriptions of the software’s code are also important. Finally, you must provide details about the software’s interaction with hardware, the machine, and data processing.

When applying for a patent for software, you should describe the general architecture of the software by diagramming the major modules of the software.  Then, like peeling an onion, you show details of each module as one or more flow charts. You must also include one flow chart that illustrates the overall working of the software. You must also include flow charts of the routines and subroutines contained within the software. If you don’t include these three important pieces of information, you’ll be at a major disadvantage during prosecution at the PTO and eventually during court litigation. If you think your software is innovative, you should seek patent protection and take the time to do it right.

The Level of Technical Detail Required in a Patent Application for Software focuses on the indefiniteness of a patent, “enablement support,” and the disclosure of the claimed function in the patent specification. A patent specification must be comprehensive enough to describe the claimed invention and show that the inventor possessed it in the prior art. Failure to provide a complete written description of the claimed function renders a claim unenforceable.

You should consider how international patent office’s review your application in case you become a Unicorn and have resources to pursue international patenting. When considering patentability, the European Patent Office (EPO) will take into account the technical character of a software patent application. For example, it will consider whether the subject matter of the claim is an actual CII or a computer program. In addition, the EPO will look for industrial application and inventive step. Taking these factors into account will help reduce the uncertainty during the patentability examination. It will also improve the chances of patent coverage for the software.  For a software-implemented invention to qualify for a patent, the inventor must fully describe the technical solution and the inventive concepts. The description should be comprehensive enough to support for the widest possible interpretation of the claims during the substantive examination.

1. Eligibility Criteria for Software Patents

The process of obtaining a patent involves several steps. First, your software product should meet the patent eligibility requirement by showing that the software improves computer performance, be it in terms of speed or enhancements to the output of the software that conventional solutions could not match.

Once the applicant has met these eligibility requirements, he or she must submit a patent application. A patent application is a legal document that contains detailed information about a product, method, or process. The application is a process by which an inventor can protect an idea or invention in an attempt to get it commercially successful. A successful patent application can be used to prevent other businesses from using the software. With the rise in software patenting, businesses also use the patent to provide financial success and competitive advantage in the changing business world.

Since the Covid-19 pandemic outbreak, many businesses especially in the US have registered Software patents. To be eligible to obtain a patent, an invention must meet certain requirements. For example, it must be novel and useful. The invention must not have been disclosed, made available, or offered for sale. It also must not have been used in a previous manner. Most importantly, an applicant must show that the invention was not previously known to others. In other words, it must be new, unrepeatable, and unforeseen.

A new set of guidelines has been issued by the USPTO to assess the validity of patent applications. The updated procedures were designed to identify claims that recite judicial exceptions and incorporate considerations from the Alice/Mayo framework. The revised procedures at the USPTO Step 2A step, include the factors from the Alice/Mayo framework. The revisions will help examiners identify claims reciting judicial exceptions while increasing consistency and predictability. The Alice case requires that a court should first determine whether the claim covers an abstract idea. Basically, the courts don’t want a patent that blocks the entire field, so your claims should be narrowly tailored to cover the specifics of your novel software invention, yet be broad enough to exclude the competition from your novelty, so the claims need to be carefully balanced to give you meaningful protection. You can check out our other blogs that discuss the ban on patenting abstract ideas.

To be eligible for a patent on software, an invention must have more than a “minor extra-solution activity” and play an important role in achieving the desired goal. Adding a technical description and describing engineering solutions will increase your chances of getting a patent. However, careful thought must go into claiming the invention. For example, you should not claim all methods for relieving a particular pain point; you should narrowly tailor your claims to only the specific pain point that your software solves.

2. Non-obviousness Criteria for Software Patents

Non-obviousness is one of the most important doctrines in software patents. Examiners at the USPTO will ask a hypothetical question to determine whether your invention is obvious. The patent examiner will look for elements that prove your invention is novel and will minimize computing resources needed to perform a task. If you can prove your invention is not obvious, you will have a high likelihood of being granted a patent. Therefore, it is vital that you consider the specificity of your invention and its potential to create a profitable business.

In the United States, the granting of a software patent based on non-existence of the invention is a complex process. There is a dividing line between what is considered to be “inventive” and what is “obvious.” Fortunately, the U.S. patent system allows applicants to introduce non-obvious facts after the filing of an application. Here are some of the steps necessary to win a patent based on non-obviousness:

  • First, the invention must not be obvious to someone in the field in which it is used. An example of an obvious product is an ordinary process that can be implemented by anyone with an average amount of knowledge. A product that is new and unexpected is non-obvious because it is an extension of a known product. A mobile app’s uniqueness may be based on its use of digital tools and its collection of data in novel ways.
  • In US patent law, the term “non-obvious” is one of the most crucial elements in patentability. It is an essential requirement to ensure that a patentable invention is not obvious to a person of ordinary skill in the field. A prior art document can be trivial if it contains motivation or a reasonable expectation of the claimed invention. But it must also explicitly teach the claimed invention.

Once an applicant has developed their invention, they should determine whether it is obvious to a third party. The process of establishing non-obviousness is difficult because it requires an inventor to consider the complexities of the invention. A software patent is often issued by a court based on how obvious it is to others in the field. In addition to ensuring legal clarity, a software patent may also help to protect the innovations of a software company.

Step one of the invention analysis processes is to determine whether the claimed invention is directed towards an abstract idea. The abstract idea can be a concept, fundamental economic practices, or even a mathematical idea. Most business methods and software inventions fall under the abstract idea category. Step two of the analysis determines whether the claimed invention limits the use of that idea with a specific technology or improves another technology. The third step involves determining whether the claim relates to the function of the computer.

A software patent application must also describe the overall architecture of the computer. The software must have a computer interface. The software must also be a new, unique product that does not appear obvious to average industry workers. In addition, the disclosure must be comprehensive and detailed enough to satisfy the USPTO’s criteria. If the software is a software program that has a business function, it must have a business application and be tied to another machine.

Software inventions that are designed to automate tasks are not patentable. In addition to the software itself, scientific theorems and abstract ideas are not patentable. In the US, patentable software inventions can solve a computing challenge in an unconventional manner. The two-step process in evaluating software patent applications is explained in detail in the October 2019 PEG. If you feel that your invention meets the two-step process, then you should consider patenting it.

Once you’ve ascertained your software’s patent eligibility, you should work with a qualified patent attorney to help you get the necessary patent protection. Your attorney should coach you through the entire patent process, not just the legal portion. After all, you’ll need assistance with the technical and legal process of patent filing, so you’ll need a patent attorney that can handle both. This way, you’ll get the help you need to protect your idea, not just the technical aspects.

3. Inventive step for your application

As a start-up company, you may be wondering if you have the required Inventive Step to get a software patent. This is the main criterion for deciding whether your idea is new or an obvious improvement. Patents are not just given out to anyone – they are meant to reward exceptional ideas and inspire creativity. Inventive Step is a critical criterion to judge whether your idea is novel or unique, and must represent a significant advance over existing ideas.

In order for your software to be patented, it must solve a technical problem or produce some other effect. Any technical effect or problem the software solves must be sufficient to warrant patent protection. It cannot be a purely functional feature that does not solve a technical problem. In this case, a software patent is more likely to be granted than one that is not. To be eligible for a software patent, your invention must perform a technical task or solve a technical problem. In European Patent Law, an invention must involve a step that was not obvious to the person skilled in the art when the invention was created. This step is not a simple process, but a significant technical or economic advance that makes the invention novel and not immediately obvious to a person of ordinary skill in the art.

4. Filing a provisional application

Many companies start with a provisional patent application. Provisional patent applications are relatively cheap and do not involve the complications associated with non-provisional applications, and they do provide interim protection for one year.  You do need to convert the provisional app into a utility application to get a granted patent.

A provisional application to patent software must meet certain requirements to be eligible for a U.S. patent. It must be submitted in the name of all inventors and disclose the invention. If the disclosure is incomplete, a provisional patent application is invalid and is not enforceable. In the United States, provisional patents are granted to products and processes that meet certain criteria, such as enablement and best mode. You can find more information about filing a provisional application on the U.S. Patent and Trademark Office website.

To file a provisional application, you must first draft a detailed description of your invention. The description may include a flow chart or details of the app’s functionality. Many ideas crystallize during the application process, so you should thoroughly understand the details of filing a provisional application. A provisional application will increase the likelihood of your patent application being accepted as a legitimate application. It may be worth considering using an attorney to help you prepare a provisional application.

After submitting a provisional application, within 12 months you must file a nonprovisional application or the provisional application will expire and you can’t claim priority to it any more.

If you are in the process of patenting software, a provisional application will help you secure a position as a first filing. You can then move forward with distribution and production, and even look for investment capital. This means that it may be worthwhile to consider the pros and cons of filing a provisional application to patent software.  Software from PowerPatent, which is patented, can help guide you through the provisional patent filing process so you may want to learn about such software.

Patenting software requires more than routine conventional activities. To receive patent protection for your invention, it must solve a problem in an innovative way. This means that the invention must be unconventional and have specific claims, which do not preempt all applications of the idea.

There are several criteria to meet before a software can be considered patentable. Among them: the program must be new and original, use a machine, and not be obvious to the average person in the industry. Additionally, the disclosure must be as detailed and specific as possible and follow USPTO guidelines. This is why a high-quality provisional application is important.

Patenting software requires a great deal of preparation. The first step is to find a patent attorney who can help you create a patent-worthy application. The attorney will review your software and look for other similar inventions, and once the patent-awarding office believes that your invention is truly unique, the application process can begin. Once you’ve chosen a patent attorney, you’ll need to submit a full application. Test if the only link to a machine were to use e-mail to communicate results of a process.

How to Get an Issued Software Patent After the Provisional Application

Patents are granted for new features, and software is no exception. If you are wondering what kind of information you need to submit to patent a software program, read on.

To obtain a patent for your software, you must be able to show that your invention is new, useful, and not obvious. Patents are usually granted to new, useful, and non-obvious products. Therefore, more innovative and useful software may be easier to patent. Moreover, software that solves a specific problem is more likely to receive patent protection. Listed below are some steps to follow when applying for a software patent.

There are various ways to get a software patent, but the US Patent Office’s guidelines are strict and complicated. Fortunately, there’s help from Patent PC. After all, software patents are valuable assets for innovative computer companies. It’s important to understand that, under current U.S. patent law, computer software can be patentable if it implements an inventive step in a technological field. The software functionality must be novel and inventive in view of prior art.

Software patentability often depends on the patent drafting skill. Clearly describing the engineering challenge or how a technological solution is achieved can significantly increase the chances of receiving a software patent. When submitting a software patent application, a developer should avoid vaguely describing the technology behind their invention. The invention must be specific and demonstrate how software can perform a particular task better than a human. If you do not have a background in computer science, a brief online survey should help you determine your patent-readiness. If you are not sure whether your invention is ready for a patent, read on to find out more about this process.

In addition, the claims in a patent application should be focused, narrowly claiming a particular method of relieving a specific pain point. While the courts and the USPTO look for specificity in the claims, this needs not make your patent easy to design around.  They key is to focus on what is important to your customers.  A specifically tailored claim that covers the exact features demanded by customer and keep out the competition can be extremely valuable in contributing to your go-to-market plan exclusivity.  The following sections will help you prepare a patent claim for your software invention. After you have answered these questions, you can proceed to write the patent.

After you have drafted your provisional patent application, you should submit it to the USPTO. The process of filing a provisional patent application will require you to submit a comprehensive information disclosure sheet. This document lists all the prior art, reference points, and industry knowledge used in your invention. This information is available for examiners to review. Unlike a provisional application, the cost of filing a formal patent application will be double that of filing a provisional application.

In addition to filing your utility application, you must pay the examination fee and if all requirements are met, the PTO will grant the patent. A standard patent will last 20 years. It is important to pay the examination fee on time. Failure to pay this fee will result in your application lapse.

When you file the non-provisional patent application, you should submit known prior art by preparing a document called an Information Disclosure Sheet (IDS). The IDS identifies all references, prior art, and industry knowledge relevant to the invention. The information disclosure sheet also gives examiners the same information as the inventor. A formal application is reviewed by the USPTO and costs twice as much as a provisional one.

Once issued, every four years you must pay a maintenance fee to keep the patent in force, so you should keep track of issue date and pay every four years up to 4 times and stop as the patents will expire after 20 years. The cost of a software patent application can be higher than for other types of inventions, due to its inherent complexity. A simple invention may cost as low as $7,500, while more complex applications can cost more than $17,000. Biochemical and biological inventions are in the same range.  Mechanical patents, on the other hand, may be less expensive. A good way to start the process is to learn as much as you can about the basics of software patenting before hiring a firm to pursue the patenting process.

A qualified lawyer can help you navigate the process of getting a software patent. Patent attorneys often coach their clients on how to write a software patent application, which is a critical step in the entire process. If you are uncertain about the validity of your proposed software, a qualified lawyer can advise you on the legality of your idea and help you file. It is recommended that you hire a software patent attorney who is familiar with the case of Alice v. CLS Bank.

How to expedite allowance of your application

Filing a utility patent application for software can be a lengthy process. This is because it can take several years for the U.S. Patent Office to review your application.

The USPTO periodically introduces pilot programs to facilitate prosecution of Software Patent Office Actions. Among them is the After Final Consideration Pilot 2.0. In this pilot program, applicants can amend their independent claims after the Examiner determines that the claim can be fully considered and reexamined. In order to successfully file a utility patent application for software, applicants should carefully review these pilot programs. Here are some helpful tips to help you file your application for a utility patent for software:

While software is an ever-changing field and constantly evolving, it is a good idea to engage competent patent counsel. Patent attorneys should be knowledgeable of 35 USC 101 and understand the process of writing software patents. The most important issue to remember when filing a software utility patent application is that the costs of a utility patent application can be staggering. Unlike in other sectors, a software utility patent may take many years to grant.

Patent eligibility is often determined based how the software improves computer performance, either in speed or quality of the output (such as speed of image processing or quality of the resulting image – thus faster than the conventional system to match the same quality). A software solution must also be sufficiently “necessarily rooted” in computer technology to qualify for patent eligibility. It must also be innovative and unconventional and be unique enough to not preempt every possible application of the idea.

As stated above, your applications should provide in-depth discussion of the algorithm and how the software innovation improves performance.  The software patent application should expect an Alice challenge and should provide information to the reader / patent examiner that the application is patentable subject-matter per se.

How to handle abstract idea rejections

An abstract idea to patent a software program requires two specific steps. First, an applicant must identify an abstract idea. Second, the applicant must show that the idea is an innovation added to an earlier, previously existing technology. Third, the applicant must explain how the added concept makes the abstract idea novel. While this is not a straightforward process, it is possible to overcome the “abstract idea” rejection and patent a software program as detailed above.

The second step to a software patent application is identifying what elements are necessary to transform the abstract idea into an eligible patent application. Generally, patentable abstract ideas solve a problem that is not conventionally solved and are not preemptive. Ideally, the abstract idea should also have claims that do not preclude all possible uses of the idea.

A software patent application may be denied because of the lack of clear claims. The claim must be novel or inventive enough to satisfy the patentability requirements. For example, a computer software program can’t be patented if it uses a mathematical formula. Furthermore, it must be related to an algorithm that performs calculations. Without the ability to show that a particular algorithm is unique, the applicant may not receive a patent.

How to show Inventive Step

Before submitting your software program for patenting, you must determine whether it is patentable. There are two aspects to the assessment of a software program’s patentability: technical character and inventive step. In this article, we’ll discuss each separately. If you’re not sure if your software program has an inventive step, consider consulting with an expert in the field. They can advise you on the relevant case law and EPO practices.

The first step to determining whether a software program is patentable is to determine if there is a technological problem that the invention solves. A technical problem can be solved by the computer-implemented simulation, but it can also produce a technical effect that transcends the software program’s implementation. Regardless of whether a software program is patentable, it must be an improvement on existing technology.

The second step to determine whether a software program has an inventive step is to analyze how the computer program is used to predict a specific outcome. For example, in an AI-based medical software patent application, the first step involves modifying input data that a skilled in the art would use in the prior art. In this case, the modification improves the accuracy of a neural network’s estimation of dementia. This technical feature is not disclosed in the prior art. If it is used to estimate a particular stage of dementia, the patent holder must claim the technological feature that makes the software program more effective than competing products.

Another important step in determining whether a software program is patentable is identifying what is considered to be a novel invention. A well-designed software program may be patented for its usefulness, if it is the first one to recognize a long-standing problem. If it is marketed and sold successfully, this may not be considered to be an inventive step. In that case, a successful software program may be due to the simplicity of its design, branding, and advertising, which have nothing to do with the technical merits of the invention.

How to patent a business method software invention

Getting a software patent for a particular business method involves tying a process to a specific computer technology. Typically, the process involves computer-implemented steps that take place over a communications network. However, it’s not enough to simply state that a particular method works in this way. The applicant must also describe the process in great detail. In the event that the method is not new and fully developed, it won’t be granted a patent.

There are three important steps to claiming a software patent. The first step of the patent analysis is determining whether the claimed invention is directed towards an abstract idea. Abstract ideas include concepts that organize human activity, basic economic practices, mathematical ideas, and more. Getting a software patent for a business method can protect a business method. In addition to the process itself, the claims must describe the functionality of a computer.

Once an applicant receives the patent, the process of registering the patent can take many years. The pendency period is also important, as the patent will be valid for twenty years. During this time, people may use the business method while it’s pending. While patenting software for a business method may not take two to three years, the entire process can cost thousands of dollars. Furthermore, the applicant will likely need to hire a patent attorney to file the patent application, which will require additional fees.

When filing for a software patent for a business method, applicants should first complete the utility patent application for the invention. This will require a detailed description of the software, including the user interface and algorithm. Additionally, it’s important to note that software business method patents don’t claim the source code, since it is only copyrightable. The final step is to identify which components of the software the applicant intends to protect.

Next, we will discuss cost issues.  There are two main types of software patents: provisional patent applications which expire automatically within one year, and non-provisional patents which will be examined and if allowable, will mature into an issued software patent that can be enforced against your competition.

Cost of preparing and filing a nonprovisional utility patent application

The cost of obtaining a nonprovisional software patent will depend on the type of software you have developed and your industry. The more competitive the field is, the more complicated the process will be. A software patent protects your idea against inappropriate use by others. This can lead to severe consequences if it is used without permission. It also positions your company for better financial performance. The following is a breakdown of the costs associated with software patenting.

When preparing to apply for a patent on software, you must consider several factors. The cost of a software patent can be determined by the complexity of the software and also the filing type. A law firm usually charges between $1,500 and $4,000 to conduct a prior art search. The results of this search are useful in identifying potential barriers to registration. It will also help you determine the scope of your software patent protection. It will also require an attorney’s time and knowledge to complete.

There are two main types of patent costs. The first category includes preparation, which includes everything you must do to get to the “patent pending” status, while the second is prosecution, which covers everything from the filing to the issue of a patent. Preparation costs include understanding the invention, drafting claims and specifications, getting illustrations done, and other odds and ends to file with the US Patent and Trademark Office.

Depending on the type of software and its complexity, the patent application may cost from $7,000 to $18,000 (depending on the type of invention). The filing fee for a small entity is only around $900, while fees for larger entities can be twice as much. If you choose to hire a patent attorney, you should expect to pay between $10,000 and $21,000 for the entire patent preparation and filing process. Patent attorney fees depend on the complexity of the application. In addition to the attorney’s fees, there are drawing fees.

A patent application for software may seem costly, especially for start-up companies. However, it is important to keep in mind that a patent application requires expertise and can lead to costly re-writes or responses to Office Actions. Choosing the right patent attorney can help you avoid these potential pitfalls. In short, you get what you pay for. So, do your homework. Do not make a hasty decision.

The cost of filing a patent application for software varies by country. The average application costs approximately $15,000, according to an AIPLA bi-annual survey. This amount includes filing and lawyer fees, as well as illustration and search costs. A utility patent requires on average about 4 office actions, and some will issue immediately. Others will require more back and forth consultations and interactions with the examiner.

The first step in the software patent process is a prior art search. This research will identify similar issued and published patents and patent applications. This will help you assess the scope of your patent protection. You may choose to conduct your own research to determine whether there is any overlap or potential barriers to registration. It is always good to do your research before drafting the application. This way, you can find out which patents are similar to yours and you can focus on highlight how you are different.  This is much better than drafting in the dark.

A software patent is a great investment in protecting your idea and ensuring that others can’t use it without permission. This can help you find investors or test the software. You can also use the process to conduct research on the competition.

The filing fee for a patent vary by country. The United States, which has more than 300 million people, costs the least. However, other countries such as Japan and Europe can be two to four times more expensive. The main cost in international filing is annual annuities, which can run up to $1,000 per country. This is in addition to the filing fees.

Because of the inherent complexity of software patent applications, the costs of filing for a patent are higher than for other types of inventions. A simple software invention might cost around $7500 to file. However, a complex one can be around $18,000. This range is comparable for biochemical and medical imaging systems. Those looking to patent software should expect to pay a few thousand dollars. And don’t forget to budget for government/PTO fees.

As with any legal process, experience matters. And in patent prosecution, a lawyer with experience will be invaluable. A patent application with a weak foundation is unlikely to receive broad protection. It may even fail to attract enough funding from investors and never get off the ground. That’s why start-up companies in biotechnology and software may have to pay 1.5 to two times these figures. The costs of patent software will depend on the complexity of the invention and its corresponding application. The fees are typically based on the size and complexity of the invention.

A typical US patent costs around $50,000 in life-time. This cost is for a “high technology” invention. However, this figure is subject to variation and can increase or decrease depending on the complexity of your invention. In many cases, you can get a patent on your software for as little as $800 if you write and file your application yourself. However, it is still better to seek help from a professional.

The costs of patenting software can include time, knowledge and monetary costs. While the benefits of are considerable, you should weigh the costs against the potential value of the software. If the potential return from the software is small, the costs of obtaining a patent are not worth it. However, if the software can generate substantial income for you and others, the investment may be well worth the effort.

Cost of preparing and filing a provisional patent application

If you have an idea for a new piece of software, you should seek to patent it. A provisional patent application is a good option for early-stage software development.  It is significantly lower in cost due to its informality, yet the provisional application will save your priority date.  For these reasons, provisional patent applications have become popular in recent years.

A provisional patent application consists of a detailed description of an invention, without the claims. Unlike a traditional patent application, a provisional patent application will not be examined by the USPTO, so it cannot be issued as a patent. However, it can establish your US patent filing date.  

The provisional patent application must thoroughly describe an innovation for it to be termed effective. The application provides the innovator priority rights if the provisional application fully describe the innovation and if the follow-up non-provisional application is eligible for a patent or is patentable.  Due to the many traps on software patenting. you may choose to hire an attorney to help you with the preparation and filing of the provisional application. Whether you want to hire an attorney or file a provisional patent yourself is up to you.

Depending on the complexity of your invention, you can expect the cost of obtaining a provisional patent to range from $1,500 to $3,000, depending on the state of your invention. Hiring an attorney to prepare a provisional patent application will cost you more because the process is more complicated and involves more research. In addition, it will take longer to prepare and file a provisional patent for software.

While hiring an attorney is a good option, it can also be quite expensive if you do not understand the patent process. An attorney can provide valuable insight into your risk moving forward and break down the costs. An initial consultation can take anywhere from thirty to sixty minutes. During this time, the attorney and inventor will discuss the specifics of the invention and whether or not you are eligible to obtain a patent.

As noted above, provisional apps are not examined and expire within 12 months of filing and thus need to be converted into utility patent applications before the one-year deadline for you to claim priority to the provisional filing date. However, if you fail to do so, the patent application will lapse.

In sum, to get a granted patent on your invention, you must file a nonprovisional patent application that claims priority to the provisional application. To do this, you must file a nonprovisional patent application within one year from the date you filed the provisional patent application.

After you have drafted your provisional patent application, you should submit it to the USPTO and pay the examination fee. Generally, for a small entity, this fee is not much more than $200. Failure to pay this fee will result in your application lapse. In addition to filing a provisional application for software, you should keep track of your filing date, since provisional patent applications will expire after 12 months.

The costs of patenting software vary from one firm to another, but on average, the process will cost between $8,000 and $12,000, plus filing fees. If your software is unique and useful, you may be able to secure a patent with just a provisional application, which only requires the filing of a preliminary patent application. The application will be submitted to patent offices worldwide, but a year hiatus is allowed between the filing and the final hearing.

Patents are only valuable if they can be enforced. But since patent enforcement is so expensive, few startups or hobbyists can afford it. Many businesses pay royalties to invalidated patents, but this can halt business transactions. If a software company is sued for patent infringement, it may be difficult to recover the costs. The costs of can be wildly high when compared to the costs of software development.

Time it takes to get a patent

When it comes to filing a patent application, time to issuance is of the essence. However, the pathway of going through the patent office’s such as the USPTO is complex. Patent examiners must review hundreds of applications and make decisions about which ones to approve or reject. Whether an invention is technical or not, it will determine the length of the wait for the patent.

The average time from filing a patent application to receiving a first office non-final action to final ruling is roughly two years. To expedite the process, you can file for a “Track One” application. This option will require an additional fee. For those that qualify as being older than 65, you can get acceleration without any cost. So if you are an older inventor, you can get your patent faster for free!

Depending on the complexity of the invention, the time it takes to obtain a patent is typically long. A patent search can take up to three weeks. A patent examiner must examine many prior art references to determine whether or not a specific technology or combination is patentable. This examination can take a longer time for new inventions in rapidly evolving fields such as computer software.

Furthermore, the number of patents being processed at the USPTO is growing, and more applications require a longer time to complete. While this process is lengthy and tedious, a good patent attorney will help you get through it. The wait however becomes more rewarding especially when a qualified patent attorney helps you understand the process and guide you through the process step by step.

The involvement of a professional in this field gives one surety of a more positive outcome. Remember to hire a patent attorney with computer science background to ensure that your invention is patent worthy. A qualified patent attorney will provide expert advice on the timeline and what can be done to expedite the process. If you want to expedite the process, contact a patent attorney with extensive experience.

How to use your software patent

Once your invention has been patented, you can use it offensively and defensively. This is where a software patent can be of value, as it protects your idea from inappropriate use by your competition. A patent does not grant you the right to make or sell the product you developed. But it does grant you the right to sell or license it to others.  Thus, you can elect to sell the product or service yourself, or license the right to others in the marketplace to use your invention.  This is the whole reason you got a patent!

Another alternative is to register your IP with the U.S. Customs and Border Protection. Customs can block imports of infringing goods from foreign countries.  You can register your trademark, copyright, and patents with the US Customs and Border Protection to keep out infringing products.

For downloadable software, you can complain to Amazon to block the infringing applications.  A software patent can prevent copycats from entering the market and can lock out the entire U.S. market. Different national IP laws can also help the software industry thrive.

If your goal is to share your code with the world (e.g., by licensing it open-source or including it in an existing open-source project), patent protection may still be a good idea as the patent gives you control. It may not be financially feasible to file for patent protection if your software is of no commercial value.

Patent protection at a fixed-fee

We help clients identify new markets and strategic partners to add value during our consultations.

We will do everything we can to lower costs for our clients. We offer most of our services for a fixed price to ensure that clients have clear objectives and can meet their budgets. Our fixed fee approach applies to:

  • Preparing, filing, and prosecuting patent applications at USPTO
  • Opinions on patentability, validity, and infringement.
  • Enforcement of patent rights in U.S. District Courts and on appeal
  • Post-issuance Proceedings of the USPTO

We encourage you to request our list of typical patent fees. For more information about our services, call us at 800-234-3032 or schedule a strategy call with us.

In addition to the requirement that your idea is novel and non-obvious, it also needs to be useful and easy to implement. If you’re aiming for an international patent, you’ll have to prove that your app’s idea hasn’t been previously patented by someone else. You’ll also need to prove that your application hasn’t been publicly disclosed. By law, patents are not international.