Computer software has transformed the world around us and is constantly used to better and innovate in all industries. Although software is currently the most influential category of invention, its role in the US and international patent regimes has been the topic of much dispute and controversy.
The term “computer software” refers to a collection of programs, as well as related documentation and data. Software code can be conceived of as a collection of instructions for a computer’s hardware to execute.
Computer software is protected by both copyright and patent laws. Copyright law protects how the code is written, whereas patent law protects how the code functions. Many inventions use software to attain a result. For example, a social media app, an automated package sorting machine in a warehouse, and a QR code scanner. These will be referred to as “software-related inventions.”
This article looks at how the patent system applies to software-related inventions.
Can You Patent Software?
Yes, you can patent an innovation that utilizes or includes software. An inventor would only be interested in obtaining a utility patent for their software-related invention. Design and plant patents would be ineffective in protecting a software-related invention.
Inventions that incorporate software can be patented before the code is written. A patent protects the invention’s overarching design and architecture, as well as the software that accomplishes the desired results.
Assume your idea involves attaching a microcontroller to a camera and a spray bottle so that it sprays water on a plant when its leaves begin to turn brown. Before you write the particular software code for the microcontroller, you may be able to patent the broad concept.
The qualifying conditions for a software patent are the same as those for other technological domains. Patent eligibility requirements include subject matter, novelty, nonobviousness, and utility.
How Do You Patent Software?
The method of patenting a software-related invention is similar to patenting other inventions. It begins with inventing something new and concludes with a granted patent that prevents others from copying your innovation.
Step 1: Develop your idea into an innovation
Every invention begins with an idea. To be eligible for a patent, the idea must be developed into an invention. The concept must be related to anything in the real world.
Building a prototype will help you transform your idea into an invention. Test and improve the prototype. Consider all of the possible versions of your invention.
Step 2: Contact a Patent Attorney.
When an inventor wants to patent an innovation, they should consult a patent attorney. Although filing a patent is not required, it is strongly advised to hire a patent attorney. A patent attorney may assist an inventor at every stage of the patenting process, including drafting strong claims to ensure the innovation is sufficiently protected. A patent attorney will assist the inventor in determining the best course forward while applying for a patent.
Step 3: Perform market research
A patent gives people an economic incentive to design new items. There is no purpose in applying for a patent if you cannot profit from the invention. Conducting market research allows the inventor to make an informed choice about whether the cost of filing a patent application is worthwhile.
Before you begin the patenting process, be sure you understand the commercial potential of your idea and have a strategy for making money from a patent.
Step 4: Conduct a patentability search
The USPTO requires that an invention be novel; thus, a patent cannot claim anything that already exists. Before commencing the application procedure, an inventor must research what has already been done to ensure that their idea is patentable.
A patentability search, also known as a prior art search, seeks to identify as many relevant sources as possible that the USPTO could utilize to prohibit a patent from being issued. An innovator should always conduct preparatory study to better comprehend the technological field. Google patents, Google Scholar, and the USPTO patent database are excellent places for an innovator to begin their own study. Try different combinations of Boolean and keyword searches.
Google Patents includes a function that displays related patents at the bottom of the page. Explore as much as possible. The USPTO provides a step-by-step explanation on how to do a preliminary patent search.
Although innovators should perform their own study, they are advised to hire a professional researcher. A patent search can be performed by a patent attorney or a patent research firm. Professional research services have database subscriptions, which allow them to access more sources than an independent inventor.
If an inventor is not trained to conduct research, they may overlook significant previous art references. Using a professional researcher gives you the highest level of confidence that your idea is unique and worthy of moving forward in the patent process.
Depending on the complexity of the invention, a professional research business may charge between $100 and $1,000 or more for a patentability search.
Step 5: Determine Inventorship and Ownership.
An inventor is entitled to acquire a patent for their innovation. Who the inventor is may not always be evident. An inventor is someone who contributed to the conception of an innovation. If more than one person contributes to the conception, they are all deemed inventors. If a person is a named inventor on a patent, they own the entire patent.
If there are two or more inventors, each may use and license the patent without the other’s authorization. This can be problematic since co-inventors can become direct competitors of one another. To avoid this difficulty, co-inventors could execute a contract before filing the patent application. They may agree not to compete, or they may form a firm that they all own and transfer the patent rights to it.
Most corporations include intellectual property clauses in their employment contracts that assign all employees’ ideas and inventions to the company if created “in the scope of employment.” If you invent something for your employment and file a patent for it, you may be regarded the inventor, but the patent rights belong to the corporation.
If you are working, you must read and understand your employment contract. It is strongly advised to consult with a patent attorney when interpreting the meaning of intellectual property terms in employment contracts.
Software Patents Examples
The following examples are all software-related inventions that have been granted patents by the USPTO. Take note that the inventions are not the software itself, but the outcome that the software delivers. These inventions are discussed in much greater detail here.
- A server that is wirelessly connected to a mobile GPS receiver uses a mathematical model to solve for the mobile receiver’s position without using satellite positioning data or absolute time information from a satellite.
- To safeguard a computer from compromise, physically isolate a received electronic communication in a “quarantine” section of the computer memory.
- Keeping control of customers during affiliate purchase transactions by developing a method for co-marketing the “look and feel” of the host web page with product-related content information from the advertising merchant’s web page.
- Improving halftone techniques by creating a better mask known as a “blue noise” mask. The blue noise mask requires less memory than prior masks, resulting in faster computation time and improved image quality.
All of these patent applications were able to overcome the subject matter judicial exclusions by demonstrating a real-world application. The inventors most likely sought a patent because they intended to commercialize the innovation and would not be able to keep it a trade secret.
Software Patent vs Copyright
There are significant differences between copyright and patents. Copyrights protect the expression of an invention, including its sequences and structure, and are routinely secured for software source code. Patents, on the other hand, provide significantly broader protections because copyrights do not prevent someone else from generating code that uses the same method.
A patent eventually prevents competitors from exploiting techniques or processes in an unauthorized manner or from developing software that performs the same function, regardless of how the code was created. If you are unsure whether the type of intellectual property protection is best for your unique program, do not try to solve this complex legal issue on your own; it may be best to secure both types of protection.
Can Software Be Patented and Copyrighted?
Software can be patented and copyrighted simultaneously. An experienced intellectual property attorney can help you develop the best overall legal strategy for your unique software. It is possible to obtain a copyright in addition to the patent mentioned above.
Secure a copyright, and you will have protection for the method in which the software is expressed, whether it is in source or object code. Copyright protection begins when the code-creation process begins. However, it is in your best interest to legally register the copyright with the federal government’s copyright office. Such registration is not a simple job, and our intellectual property attorneys are here to assist.
Copyright provides protection for the creator’s lifetime, plus an additional half-century. Keep in mind that a copyright only covers the source code. This limited protection allows competitors to make minor changes to the code to escape legal action and, eventually, infringement penalties, whether the change is a single line change or a complete rewrite in a new language.
Conclusion
Software has never been more intertwined into our daily lives than it is today, influencing every element of technology, from connected vehicles to digital banking. People frequently asked patent attorneys if it is even possible to protect inventions implemented by software. The typical response is that patenting anything software-related is extremely difficult and prohibitively expensive. However, this is not the case, and there is a simple test to determine whether your idea has a good possibility of acquiring protection.