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Yes! You Can Patent Software: How to Maximize IP Protection & Build Your Legacy!

Can you patent software? Is software protectable? Is it worth filing for patent protection on software? We’ll explore the why, what, and how of software patents, including some real-life illustrative examples as you learn whether software can be protected. Just remember that patents are for implementation, not just an “idea”.

Let’s dive in!

Explaining Patent Eligibility Requirements for Software

Not all software innovations automatically qualify for patent protection. The USPTO follows a specific set of rules and legal tests for determining what software is considered eligible for patenting.

Under current USPTO guidance, the software itself is not inherently patentable. However, any software that provides a technological solution to a technological problem and improves the functionality of a computer or other technology may be patent-eligible.

The key criteria revolve around whether the software produces a concrete, tangible result that amounts to “significantly more” than just automating an abstract idea, law of nature, or mathematical formula on a generic computer. To translate, if your innovation is simply adding a computer to a human process, then it likely won’t be patentable.

As a 2020 article from Osgoode Law School explains:
“The IP principle that abstract ideas cannot be patented has often been misapplied to the development of software, often boiling down to concluding software to be unpatentable. However, which parts of software are patentable, and which parts are not? The short answer is that while lines of code are not patentable, software can be patentable if it is useful and can be susceptible to commercialization”.

If your software delivers a novel technical improvement, like increased processing speed, enhanced security protocols, more efficient data storage, or optimized user interfaces, it likely meets the “significantly more” patentability test.

We’ve worked with countless inventors and attorneys. When you are surrounded by new technology every day, sometimes the kneejerk response to any potential invention is “it already exists” or “it is simply 2 Game Cubes duct-taped together” (oh, was that an oddly specific video game industry pejorative? Well…). If the software needs to be developed or created, or if there is a specific market need for that software because it doesn’t already exist, there is probably innovation hiding somewhere. Before immediately dismissing whether something could be innovative or selling yourself short of your patentable potential, dig into why the solution is needed in the first place.

Software Generally Eligible vs Ineligible for Patents

To better illustrate what crosses the patent-eligibility line, here are some examples of the types of software that can and cannot be patented: 

Some of these examples may be patentable: 

1. Artificial intelligence and machine learning algorithms.

2. Data compression and encryption techniques.

3. Database federation and synchronization processes.

4. Network transmission optimization methods.

5. Graphics processing and rendering innovations.

6. Computer security protocols and firewalls.

7. Improved digital file systems and data structures.

8. Novel methods for mobile app functionality.


Generally speaking, here are some of these examples are
not patentable:

1. General online payment processing.

2. Computerized organizational methods for human activities (like teaching software).

3. Software for filtering internet content.

4. Games implemented on generic computer hardware.

5. Automating modern business practices using known tech.

6. Software for basic displaying/organizing information.

Fundamentally, the software you develop as an entrepreneurial innovator needs to improve an existing technological process or computer capability to be patent-eligible. If it simply applies generic tech to an abstract idea, it will likely fail to meet the patent requirements. It is incredibly important to seek counsel when determining whether software you have developed is patentable. Eligibility criteria change all the time and sometimes one small thing can mean the difference between patentability and not being able to file for patent protection. 

By understanding these eligibility rules, you can make more informed decisions early on about what software components of your product roadmap should be flagged for patent protection. With upfront planning, you maximize your chances of building a robust, defensible patent portfolio. 

 Real-World Software Patent Application Examples:

1.TikTok’s Generative Scheduling Method:
 Status: Patented.

This algorithm dynamically generates
music, trying to solve the issue of creating music that can imitate certain styles while also not being overwhelming random.

2. Microsoft’s User-centric Browser Location:
 Status: Patented.



Personalized, user-driven recommendations are everywhere! Microsoft has a granted patent for providing “intelligently
selected collections of user-centric content in a web browser.”

3. Apple’s Digital Assistant Integration:
Status: Patented.


Apple continues to iterate on what its digital assistant can do, filing another patent application that focuses on how a digital assistant like Siri can
facilitate completely digital tasks. 

Why Software Patents? 

Whether you’re an aspiring or successful tech entrepreneur, you’ve dedicated countless hours and effort into creating innovative software products and solutions. The code, algorithms, and digital architecture you’ve developed represent years of hard work, brilliant ideas, and a relentless drive to solve problems in new ways. 

However, with so many tech companies battling for market dominance these days, your software innovations are extremely vulnerable. Without proper legal protection, your life’s work could be ripped off by corporate giants or unscrupulous competitors. Your legacy and future financial security are at stake. 

That’s where software patents come in. Often misunderstood but incredibly powerful, these intellectual property rights grant you a legally defensible monopoly over your software inventions for a limited time. Unlike other intellectual property rights, patents give you the right to exclude others from “making, using, offering for sale, or selling” an invention or “importing” it into the U.S. This is in comparison to a patent giving you the right to make or use an invention.

 

With a comprehensive portfolio of software patents, you can: 

1. Prevent others from copying, manufacturing, or selling your proprietary technology.

2. Generate lucrative income streams through licensing deals and royalties.

3. Increase the perceived (and actual) valuation of your company’s assets.

4. Build an impenetrable “moat” around your innovations that deters infringers. 

5. Gain a competitive advantage in the marketplace.

Yet pursuing software patents can be complex. From understanding eligibility rules to drafting helpful claims during the application process, there’s plenty entrepreneurs and inventors need to know. 

No matter how technically brilliant your software is, without legal protection surrounding it, you’re just one overzealous corporate bully away from watching your work disappear. A comprehensive suite of software patents could help those think twice before aggressively pursuing you.

 

What is a Software Patent? 

Generally, a software patent is a legally granted monopoly issued by the U.S. Patent and Trademark Office (“USPTO”). It gives you, as inventor, exclusive rights to your software invention for a limited period of time, typically 20 years from the filing date. This prevents others from making, using, selling or importing the patented software without permission. 

Software patents originally faced resistance and were not issued for decades after typical “utility” patents were allowed for physical inventions and processes. But in the 1980s, court rulings and new USPTO policies opened the door for protecting computer programs and algorithms under patent law. 

Since then, the world has seen an explosion in software patenting activity. Tech giants like IBM, Microsoft, and Samsung now obtain thousands of software patents annually to protect their digital innovations. But small startups and individual software developers can also file software patent applications. 

There have been recent developments that make software patent applications have more stringent requirements to obtain.  Working with a skilled patent attorney can help navigate those anticipated rejections.  Whether that be technical requirements for what makes a software patent “patentable” or navigating other inventions that will be cited as “prior art” during patent examination, a patent attorney could be worth their weight in gold the sooner you work with one in the process. 

Pursuing patent protection should absolutely be on every tech entrepreneur’s strategic roadmap. But of course, there are important requirements around what qualifies…and what doesn’t. 


Are Software Patents Worth It for Entrepreneurs?

Key Benefits of Obtaining Software Patents

For technology entrepreneurs and startups operating in highly competitive markets, the benefits of securing software patents are immense:

1. Deterring Potential Infringers & Litigation Threats   

As an inventor yourself, you might understand the allure of “being inspired by” a successful product or process to jump start your efforts. However, ironclad patents may protect your core software innovations.  This would make it more difficult for unscrupulous competitors to reproduce your work.  Some might even think twice before even considering knocking off your work when they see that “patent pending” or “patented” notice. 

2. Increasing Your Company Valuation & Asset Position

From the perspective of investors and potential acquirers, a robust patent portfolio surrounding your key technology significantly raises the valuation and defensibility of your legal assets and intellectual property.  

3. Securing Licensing Revenue & Royalty Streams

By granting temporary monopolies, patents give you a legal basis to generate revenue through licensing deals and royalty payments when others wish to practice your invention. This is a common growth strategy for patent-holders like Qualcomm, which derives a significant portion of revenue by licensing wireless technology patents. 

4. Strengthening Your Negotiating Power & Leverage  

As a patent owner, you gain vastly more leverage and bargaining power during partnerships, investments, acquisitions, merger talks, and legal disputes. Corporations will simply treat you differently when you control exclusive rights over key innovations. 

Potential Drawbacks and Costs to Consider

Of course, pursuing patent protection for your software isn’t a decision to make lightly. There are very real drawbacks and costs involved: 

1. Lengthy Approval Timelines & Process Delays

The average time for software patents to be examined and issued by the USPTO is over 2-3 years currently. During this multi-year limbo period, your inventions stay in “patent pending” status, though they haven’t been officially issued without substantive examination and legal review.

 2. Complex Filing Requirements & Rules

Successfully patenting software requires meticulously complying with the USPTO’s arcane formatting rules, claim structure blueprints, and ongoing disclosure requirements. One misstep can derail the entire process

3. Potential Invalidation & Legal Challenges

Even issued software patents can still face validity challenges or expensive litigation from entities arguing your invention was not truly novel. Robust written record-keeping is crucial.

4. Financial/Legal Costs of Patenting 

Each patent application requires extensive drafting by specialized patent attorneys or agents, which can cost tens of thousands just to file. There are usually a few rounds of substantive responses clarifying and refining what the claimed invention is. There are also maintenance fees and other expenses required to keep patents alive for 20 years. Balance these costs against what would happen if you don’t file or file on your own and make a mistake that could negate your efforts, lose time, or something else.

At the end of the day, patenting your core technology is well worth the investment for most entrepreneurs developing disruptive software innovations. But the road to building a protective patent capability involves several key steps:

1. Securing proper assignments and IP ownership rights from contractors, partners, and employees involved in development.

2. Filing provisional patent applications early to quickly establish a priority filing date while completing full utility filings.

3. Executing an international patent filing strategy if you plan on commercializing software globally.

4. Actively monitoring the market and conducting patent watches to identify potential infringement threats.

5. Developing non-disclosure policies for protecting proprietary information as critical trade secrets.

By thoughtfully combining patenting initiatives with additional intellectual property safeguarding measures, you can construct a legal force field around your software innovations.  

The Key advantages of this mixed approach include: 

1. Strengthening your ability to prevent unauthorized copying or commercial exploitation.

2. Enhancing legal remedies if infringement occurs, including injunctive relief and damages.

3. Deterring competitors from navigating around narrow individual protections by covering multiple angles

4. Maximizing commercial viability and licensing opportunities if you eventually wish to sell or transfer the asset.

5. Ensuring all stakeholders clearly understand the full scope of your exclusive ownership rights. 

Given the immense investments of capital, resources and human effort poured into pioneering software solutions, it only makes sense to take a belt-and-suspenders approach to IP protection. With a cohesive, layered strategy, you control the power to safeguard your life’s work. 

And with specialized patent know-how guiding you through the world of patent rules, application processes, and long-term asset management strategies, you can finally gain peace of mind knowing your software is secure. 

If you’re ready to protect your revolutionary (evolutionary?) software innovations, it’s time to take that first step on the patent journey. Reach out for a consultation on transforming your entrepreneurial vision into a permanent technological legacy.