You’ve got a fantastic new concept for what you believe will be the next big app. You conducted your investigation and couldn’t come up with anything even substantially close. You’ve gathered investors and are working with a team of developers, and you’re wondering whether you can protect your concept by obtaining a patent. Is it, however, patentable? Is it possible to patent a software idea?
Not long ago, the answer to the issue of whether an invention was patentable was a straightforward yes or no: yes! It was often said that “everything under the sun that is manufactured by man” is eligible for patent protection.
What may be patented in the United States is defined by 35 USC 101 as “any new and useful method, machine, manufacturing, or composition of matter, or any new and useful improvement thereof.” This seems to encompass software, and numerous software patents have been obtained in the years since the app economy started.
In recent years, the United States Supreme Court has weighed in, ruling that many software discoveries are ineligible for patent protection.
While this ruling and subsequent decisions do not completely preclude software inventions from being patented, it has become significantly more difficult to obtain patents for software inventions, and those patents that have been granted for software inventions are significantly more difficult to enforce in court.
If your invention includes a business approach or involves data processing, cost/price calculation, e-commerce, or financial software, you will likely have a more difficult time obtaining patent protection. If your proposal entails using generic (non-specialized) computer hardware in a way that generic computer hardware is routinely utilised, you will most likely have a difficult road ahead of you.
If your idea involves specialised computer hardware that you have created, if your idea improves computer technology in such a way that the way the computer operates is improved, or if your idea allows computers to perform functions that computers could not perform prior to your idea, then you may have an easier time pursuing patent protection.
Establishing patent-eligibility for software inventions is a critical first step in getting your patent. However, your concept must still be considered original and non-obvious. To put it simply, “new” indicates that your idea was unknown until you developed it. “Non-obvious” often signifies that none of your invention’s characteristics may be found somewhere independently.
