Lots of inventors and entrepreneurs ask us the question "Can I patent software? Can software be patented?" The direct answer is: “No, unless…”
That “unless” is a complex and sometimes confusing qualifier for many inventors and patent practitioners alike. That qualifier includes a requirement that the patent application tie the software to an improvement to a physical operation of the computer or an improvement in a process executed by the computer.
In a time when it is increasingly common that software is delivered via download as opposed to the floppy disk of yesteryear or even the more familiar CDs, DVDs, or flash drives, this can be a difficult concept for an inventor, designer, or distributor. Also, even if the software is tied to a structural element, there are further limitations.
What CAN'T Be Patented
That structure cannot simply be “transitory” or, in other words, one that stores the software in passing as a signal or carrier. Add this difficulty to the deeply divided opinion within the software industry regarding patentability of software generally and it’s a wonder software is ever protected as intellectual property at all.
Nevertheless, that protection is highly sought-after and for the first time in history, application for patents involving software has out-paced all other forms of patent.
Global Forces At Play
Courts seem to struggle with figuring out what many software patents actually protect. Some suggest that this is a by-product of the ever-evolving nature of software itself. Others suggest that the sheer volume has lowered the quality of the patent applications and granted patents. New Zealand has taken aggressive measures regarding software, and many other jurisdictions outside the US also have interesting takes on the patentability of software.
Will this lead to similar “shake-ups” on other national stages or mark the beginnings of a global trend? It is hard to say and it seems only time will tell. For now, the software patent is a tricky but valuable asset in the current market.
How Do I Take Action Now??
Since the law is so fluid and varies from case to case, it's difficult to determine what you should do based off of one article.
In order to TRULY determine if you can patent your software, you WILL need to talk to an experienced patent attorney that knows software.
Luckily, we offer FREE strategy sessions for just an occasion. In a strategy session, we will listen to your patent idea and inform you of the best options available to you. There is no obligation on either end, we just want to arm you with the information you need.
If it turns out that your software is patentable, we would love to be the attorneys that represent you. We specialize specifically in startups and small businesses. If that describes you, you may want to check us out!