Legal Guide

Can You Patent Your Software?

So you have developed a piece of software you believe is truly unique and serves an important purpose. You have spent considerable time, money, and skill on developing this software and the last thing you want to do is see it used for profit by someone else. Products are often patented to protect them. But is it possible to patent software? Can you adequately protect software with a patent? It is a tough question to answer.

Patent Eligibility Test

In the US, there is a two-part eligibility test that looks at whether the patent is likely to be granted. These two parts are whether the patent application relates to an abstract idea, and whether the application contains an inventive concept which will take the abstract idea into a concrete application. Therefore, an abstract idea without this inventive concept will not be eligible, and it is usually the case that an abstract idea which is brought about on a computer is not likely to be sufficient. However, it could be the case that a software process is abstract, i.e. it concerns a certain method of human organization, or it deals with mathematical ideas. There is considerable debate over whether it is possible to patent software at all – and in many cases software patents do not succeed in the patent application process.

Software Successes

Some areas of software development have been more likely to result in patents being granted than others. For example, software that deals with the performance and operation of computer systems is often granted a patent. For example, software that helps to speed up a computer or increase its security.

Provisional Patent Applications

While guidance remains loose, it is still possible to file a provisional application which enables the door to be kept open to patent grants should the guidelines solidify in the future. If this is the case then a non-provisional patent application can be filed, or if the company decides not to go forward with the application they can let their provisional application expire.

Other Options for Software Protection

There is the option to file the software as a trade secret, which will work considering that the software is not able to be discovered simply through the use of the product. There are also other routes to go down to protect software and computer process but these are complex and need to be navigated by a software patent lawyer. Since this area of patent law is particularly complicated then it is essential there is some expert legal advice involved.

Image: Image courtesy of Stuart Miles/

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