What is Software Patents?

If you are wondering what is software patents, you are not alone. Software can be patented for many reasons, including its use in medical applications and the software that controls an insulin pump. Software that controls a connected car could also be patentable, as could software that improves road accident prediction or a drowsy driver detection system. Software patents can also be issued for improvements to a technical process, such as the generation of a signal.

Inventions implemented by software

In the United States, patents for software can protect software inventions if the software is tied to a machine and provides a unique improvement over the prior art. This is a challenge, since software that does nothing new is unlikely to qualify for patent protection. Additionally, abstract ideas are not patentable, so many software patent applications have been rejected. Read on to learn more about the process of filing a software patent.

There are two requirements for filing a patent application for software. First, the software must solve a technical problem. Second, it must be more than just a mere process. The process can either control external hardware or run internally in the computer. A good example of this is a systems engineer who has invented load balancing. A new circuit design implementing this logic is not an “insignificant postsolution activity,” and it is possible to file a software patent without modifying any code.

The second requirement is that software is novel. The majority of software is not non-obvious, which is the most important requirement for patentability. Moreover, 99% of all software does not qualify as an invention. Besides, most of the patents issued for software are invalid, which means that 99% of software is not patentable. Despite this, many techies believe that software patents actually impede innovation.

In the US, software inventions are still patentable. To apply for a software patent, you must meet specific technical requirements and craft the application properly. For example, your software may qualify for a patent if it improves computer functionality, requires less resources, solves a computing challenge in an unconventional way. But in Europe, software patents have many disadvantages. To be eligible, it’s important to be aware of all the requirements, and understand the benefits of software patents.


The concept of “usefulness” is a crucial factor in determining the eligibility of a software patent. While this aspect is often overlooked, usefulness separates aesthetics from practicality. For example, a perpetual motion machine would not have a “use” in everyday life, but could nonetheless qualify for a patent. A novel idea in any industry would fall under this requirement. A patent application for such an idea could be granted if the invention results in a useful result.

In order to determine whether a given invention is novel, its inventor must make a comparison of his or her claim to the prior art. Prior art is anything that has been publicly disclosed, published, used, or otherwise obtained. It can be a document, a software application, or an idea. The exception to the prior art rule is if the applicant can show that the matter has been taken without the applicant’s consent or was used commercially in another country.

The issue of what constitutes “use” in software patents is in flux, but the general idea of “use” in a computer is still valid. The Supreme Court recently set forth a confusing new framework for determining patent eligibility. In Mayo v. Prometheus, the Court cast doubt on the continued viability of many software patents. Despite this uncertainty, the Federal Circuit has granted a petition to rehear the case en banc. In the result, the court’s decision contained three distinct approaches to the issue.

The concept of “use” is related to that of “new.” In the context of software patents, newness means that the invention has not been described before. It cannot be obvious to a layperson unless it was disclosed prior to the filing of the application. Similarly, “use” is defined as finding something that no one else has come up with. The patent represents a quid pro quo, in which the patentee is granted a monopoly over the invention.


While the USPTO has some guidelines for how to determine whether an invention is obvious, there are several factors to consider in evaluating whether an idea is novel. In particular, the patent examiner must decide whether the idea is sufficiently different from the prior art to be novel. This is a judgment call, and an applicant can introduce non-obvious facts after filing their application. However, if the idea is highly abstract, it may not be considered novel.

The court will consider the objective evidence, such as the commercial success of an invention, satisfaction of a long-felt need in the industry, and skepticism of the prior art. These factors, however, do not have the same persuasive power as the prior art itself. In China, for example, an invention may be novel if it is able to solve a problem that has not previously been addressed by the public. It also needs to be shown that a computer programmer with ordinary technical knowledge could have created the invention, despite previous disclosures.

While the current standard for obviousness in software patents is subjective, the United States Federal Trade Commission has recognized the thicket of overlapping patent rights in the software industry and recommends tougher legal standards. In fact, Australia continues to align with the US approach to testing the validity of patents, which increases the threshold for obviousness in favor of the patentee. Ultimately, however, this approach introduces too many layers of obscurity and creates an artificial position that is far removed from reality.

The first test used by the patent examiner to determine whether an invention is obvious is the difference between an existing piece of prior art. Using a prior art reference to assess whether an invention is novel is to determine whether it would have been obvious if it were known to the public. The relevant case law is used to help determine the obviousness of a patent in light of prior art. The Court also looks at the level of ordinary skill possessed by the public at the time of filing the application.


A study by Ben Klemens, executive director of End Software Patents, recently estimated that software patent litigation costs American companies $11.2 billion each year. That figure includes not just free software companies, but also food and car manufacturers. All companies use software, so they all are targets for these lawsuits. However, what Klemens didn’t include in the study was the actual cost to non-software companies. It’s worth noting that the costs are not just in dollars, but in millions of dollars.

While patent litigation is expensive and time-consuming, it doesn’t reach small startups. While litigation reforms have proven effective in deterring some suits, many startups and small companies are still left out. Increasing the costs of software patents will likely limit the number of patents issued, which will disadvantage new startups. In addition, it’s worth considering the distributional impacts of software patent reforms. There’s no single solution to these problems, but one possibility is a combination of reforms.

One key factor is patent quality. The majority of PAE lawsuits target small companies, and only 4% of respondents make more than $10 million each year. In addition, these small companies are likely to be the target of a patent troll. According to survey responses, smaller companies report a greater operational impact of patents than larger companies. Therefore, a quality patent can protect a business and prevent costly litigation. And a high-quality patent can increase revenue.

In short, the cost of software patents is a threat to the software industry. As a result, many companies seek defensive patents to prevent unfair lawsuits. Obtaining defensive patents helps companies get cross-licensing deals and prevent bogus lawsuits. While many businesses would rather pay licensing fees than risk being sued, these fees are not insignificant. They will often pay the licensing fees in lieu of losing their products in court.

Rights of fair use

The law protects creative works from copyrights through the rights of fair use. Under fair use, you can use a piece of software or a work of art for personal or commercial purposes without violating the rights of others. In many cases, fair use does not involve the reproduction or distribution of the original work. Some examples of fair use include quoting a work. A teacher who prints a few copies of a poem is not infringing, as this use is not considered “commercial” use. Other examples aren’t as straightforward.

The fair use doctrine originated in Anglo-American common law in the 18th and nineteenth centuries, and was intended to discourage strict application of copyright laws, which stifle creative activity. In 1976, the U.S. Congress enshrined the doctrine into statutory law. Since then, the U.S. Supreme Court has issued several major decisions clarifying fair use, including Google LLC v. Oracle America, Inc. in 2021.

The document is the consensus judgment of a community of legal and technical experts, and was drafted by the Software Preservation Code. The document includes principles for fair use in software preservation and is organized by common situations where fair use is permitted. The three-part process was adopted by over a dozen other communities of practice. It is a good starting point for any intellectual property lawyer or attorney. If you want to start a new project, consider publishing your first draft of the guidelines.

First, make sure you don’t violate the copyrighted work. Infringement of copyrights requires a specific license from the creator of the copyright. A license can limit how much you can use your software without causing harm. It will be important to carefully review the license agreement. Ultimately, fair use will protect the rights of all parties. The law does not require the infringement of an author’s work.