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Published May 15, 2024

Catherine Cavella, ESQ.

Patents are an integral mechanism for protecting innovation and allowing inventors to control the practicality and future of an original creation. In the technology space, patents are a tool to continue the swift advance of technology around us. For decades, however, software was not considered patentable by the United States Patent and Trademark Office (USPTO). 

 

However, in 2020, software-related patents constituted over 60% of the patents granted in the United States. In the 1980s, the Supreme Court opened the door to the patentability of software. By the end of the 1990s, nearly all software and other “business methods” were considered patentable. Then, in 2014, the U.S. Supreme Court dramatically pulled back protection of software patents, creating an additional barrier of eligibility to overcome. Some doubted software innovators would continue to pursue patents given the increased hurdles and expense. However, the 10 years following the landmark 2014 decision, Alice Corp. v. CLS Bank, have witnessed an influx of computer technology into patent applications, signaling a burgeoning trend toward securing software inventions.

 

So, what are the essentials for joining this wave of software patents?

 

Requirements for Software Patents

The Alice case verdict set off a crucial shift in patent applications, forcing inventors and patent attorneys to re-think and re-articulate the inventive concepts behind the software being patented. In the years that followed, new guidance from the USPTO and the Courts have defined how software patent claims must be approached. Now, more inventors are able to protect their hard work and power their ideas. Software patents must fulfill the same core criteria that are applicable to all patent types: they must be new, useful, and non-obvious. But first they need to survive eligibility analysis: Are they patent-eligible or are they merely abstract ideas? Abstract ideas and laws of nature are not patent-eligible.

 

Software patents frequently grapple with eligibility A patent application for software must be technical in nature, clarifying the novel process or system it enhances. For example, if the software enhances a computer system’s memory or enables processing of larger data volumes in reduced time, these specifics significantly increase the odds of the patent’s approval. However, software that simply digitizes mundane tasks or processes that can be done in the human mind is less likely to qualify for protection. The more the software innovation can be articulated in terms of hardware and technological advancement, the more likely it is to pass the eligibility test. The more it can be done by a very smart human, the less likely it is to pass as eligible. Mathematical formulas are abstract ideas (or perhaps laws of nature – the mathematicians can debate that one). Therefore, they are not eligible for patent protection.

 

When Should You Patent Software?

Software and tech are separate spaces from many invention categories in the way innovations are handled. Software is often a very social area of innovation where creators will use “open source” software to foster an environment of swift advancement. This culture of “open source” in software development underscores a more collective progression ethos, encouraging rapid advancements.

 

How do you discern between open source opportunities and protecting your work? When your software possesses significant commercial value and your aim is to protect your licensing rights, patent protection becomes crucial. While a copyright defends the software’s code, it falls short of protecting the software’s functionality if another party independently develops a similar solution. Patenting ensures that even independently developed software that’s similar will need to be licensed before use.

 

Power Your Ideas with IP Works Law

The team at IP Works Law understands the stringent requirements of patents and regularly works with tech innovators through the process. Ensuring your application’s effectiveness through a comprehensive approach is vital for securing your invention’s protection. To make sure you’re in the right place as you prepare for your software patent application, contact IP Works Law to Power Your Ideas®.

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Since 1992, Catherine Cavella, Esq. Her focus on Trademark Law and Copyright Law for the last few decades gives her deep insights into the fundamental principles behind the rules. Catherine regularly writes about new developments in trademark law, copyright law, and internet law.