Do You Need a Patent For Your Software Invention?

May 21, 2019

When it comes to patents, probably none are more hotly debated than the software patent, especially in the United States. Some see getting a patent for your software invention as necessary to protect your idea, whereas others see it as an inhibitor of freedom for those who write code and create software, since modifications and adaptations often need to be fluid in the rapidly-evolving world of software development, rather than bogged down by governmental bureaucracy.

If you have a software or computer-tech related idea that you’re thinking of patenting, here’s what you need to know.   

Is My Software Idea Patentable?  

First and foremost, proper background research should be conducted in order to determine whether there's prior art that would make your idea unable to be patented. This is an important step in the patent approval process, as it can determine whether you will move forward, and what your next steps should be if you do. The next important thing to know is that you don’t have to have a single line of code written in order for your idea to be considered for a patent. Patent professionals suggest spending more upfront time writing your patent application thoroughly, rather than feeling you need to first create a completely finished program or software. Many suggest using flowcharts to aid in the explanation of your software invention’s functionality.

In What Cases May I Consider Not Needing A Patent?

There are a few schools of thought that are against patenting software. Some believe that it creatively inhibits coders and developers from innovation. Others simply follow the lead of certain large American software companies who prioritize company secrecy and first-to-market strategies over patent protection. 

Due to the existence of open source software, which is not patented, thousands of companies have thrived. This thought is carried by the belief that giving away your coding in an open source format benefits the entire community positively in regards to innovation. 

Another viewpoint for not considering a patent is that patents take a long time to get approved and by then your idea could be changed or outdated, since today technology shifts in the blink of an eye. Software patenting law has also shifted rapidly over the years, which you will see below.

How Does the History of Software Patenting Affect My Idea?

Due to the many court cases that shaped the software patent process, knowing a little bit of patent software’s history can help you understand how even in the last few decades, software patents have had a rocky history when it comes to approval.

In order for a patent to be eligible, it used to have to go through a test known as the machine-or-transformation test. This test said that in order for a software piece to be considered patentable, it had to be attached to a physical machine or it had to undergo the process of changing physical matter states. For decades, this was the test that the government used to establish whether or not an idea, especially software, was patentable. It wasn’t until 2010 when the Supreme Court case Bilski vs. Kappos challenged and overturned that notion. This court case was huge in that it opened the floodgates for others because it determined that the machine-or-transformation test was not the only way to decide if a piece of software was patent eligible.

In 2014, another important court case called Alice vs. CLS Bank came about that changed how patent software was implemented. This court ruling decided that the method of processing an abstract idea with a computer doesn’t make it patentable.

Prior to Alice, patent trolls were everywhere. A patent troll is an entity that holds patents on a variety of things, often very broad concepts, essentially monopolizing and jeopardizing many different businesses and inventors. For example, because of Alice passing, a photographer who had a website where people could vote on their favorite picture, was saved from a massive lawsuit. This woman had no idea that a system for voting on a picture was a patented process that she could be sued for because of these patent trolls, so Alice was a saving grace for her financially. Without the passing of Alice, inventors would have a much harder time in the process.

Never Skip the Prior Art Search

If you have a software idea that you’d like to get patented, Global Patent Solutions can help you start the process and see if there are similar programs already in existence. Remember, whether or not you decide to move forward with the patent application process, a prior art search is essential in order to help you know how to proceed. Contact us today to get started.



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