Is There Any Patent For Software?
The question “is there any patent for software?” raises several interesting issues. For one thing, the software for an insulin pump may be worthy of patenting, allowing for more precise delivery of the drug. Another example is software that controls a connected car and predicts potential road accidents, ensuring that drivers do not fall asleep at the wheel. While these examples are relatively limited in scope, they nonetheless illustrate some of the many potential uses for software and algorithms.
Inventions that are a “machine or transformation”
The patentability of a method is determined by how closely it resembles the process claimed by an applicant. Many processes and abstract ideas, such as business methods, do not fall under the machine-or-transformation test. In the case of a software method, however, the process can be patented. Using a machine-or-transformation test to determine whether a method is patentable is an important step toward achieving patent protection for a new product.
A method claim can qualify for patent protection when the invention imposes a meaningful limitation on a specific field of use. The PTO has written a memorandum to examiners that explains that a mere field-of-use limitation is not enough. The PTO Guidance Memo explains that a machine or transformation must impose meaningful limitations on the scope of a method claim, although this definition is not clear.
The Bilski decision may have made the machine-or-transformation test both a necessary and sufficient condition for patent eligibility. This analysis seems to declare a claimed invention patent-eligible if it meets the machine-or-transformation test, although the Supreme Court has ruled in many cases that the machine-or-transformation test is not a dispositive factor.
The machine-or-transformation test has had several variations over the years. In 2008, it was used exclusively. However, since that time, the test has become less important. After that, courts began using it less. In 2010, the case Bilski v. Kappos found that the machine-or-transformation test was not outdated, but it needed further refinement.
The Federal Circuit’s decision does not define a “machine” as a separate category. It is, however, clear that there is still room for a broader test. This test requires the invention to be a machine or a process that produces an effect. This test may help ensure that patent eligibility is more broadly based than ever.
If the claim is based on a process, it is unlikely to qualify as an abstract idea under the machine-or-transformation test. For example, a machine-or-transformation process might preempt a natural phenomenon or law of nature. That means a process claiming a transformation of a machine would be patentable. However, there are other ways to overcome this preemption test.
Inventions that provide a “technical benefit”
One of the basic requirements for obtaining a patent is that your invention provides a “technical benefit” to the public. This benefit must be described in a specific way. For example, if you want to patent an invention for video game software, you should focus on a specific improvement to the technology. If your invention makes games more realistic, focus on improvements to image-processing algorithms.
In order to obtain a patent for an invention that provides a “technical benefit,” the inventor must have performed inventive activity. This means that the invention must be “unobvious” to a person of ordinary skill and experience. However, this doesn’t mean that your invention has to be radically new. Most technical innovations are just further developments of existing products. Even small changes can result in a significant technical benefit and competitive advantage.
Computers and computer-related technology are an example of inventions that provide a “technological benefit”. The EPO has noted that computer-related inventions are intrinsically patentable, because they use mathematical principles to design and produce a real-world result. A simple change in the output units would not make the technology more “technical,” but could still benefit the public.
However, the EPO will have little interest in non-technical aspects of your invention. Even if the invention involves a minor improvement in a technology, this contribution must be sufficiently abstract to ensure that it will be patentable in practice. This test can be difficult to pass in practice, and less technical ideas have often failed to pass the “technical benefit” test in the US.
Nevertheless, it is not so easy to test for the “technical benefit” of computer innovations. For instance, algorithms and digital business methods can be implemented by computer, but the test is not straightforward. To determine whether an invention qualifies as a technical innovation, the inventor must first prove that it provides a “technical benefit” to the public. In this way, the patent process becomes much more straightforward.
There are a number of ways to distinguish between a technical benefit and a “technical benefit.” One strategy involves identifying a patent-worthy invention. The patent examiner will review the patentability of the invention to identify whether it is useful or not. However, a patent may be challenging to obtain, but the patentable invention is more likely to be beneficial. That is why it is vital to ensure that your invention is protected by a patent.