Quick Summary

Can Software Be Patented?

Can Software Be Patented?

Yes, but you have it needs to fall into one or more of the following criteria:

1) Does my software make computers or other electronic or mechanical systems work better?

2) Does my software have a unique graphical user interface (GUI)?

3) Does my software process information in a unique way?

Can Software Be Patented?

3 min read time

The short answer: yes, lots of software gets patented every day! But, as with anything, the devil is in the details.


There are lots of traps in patenting software, and if you don’t work with an experienced patent attorney, it’s more likely than not you will get snared in one of those traps. But, if you’re like most entrepreneurs and small business owners, you’re savvy enough to do your research before throwing a bunch of money at an attorney.


Note: When we talk about “software,” that generally refers to any set of computer-executable instructions, including things like mobile and web applications.


So, if you’re developing new software and want to know whether to engage a patent attorney, you have to be able to answer "yes" to one of these three questions:


1) Does My Software Make Computers or Other Electronic or Mechanical Systems Work Better?


The easiest software to patent is one that makes other technology faster, more efficient, or otherwise better. For example, one of the hallmark software patents the Supreme Court found patentable addressed a problem in computer networks.


An Example:

The problem: links to affiliate websites redirected a browser to those sites, even when the user didn’t want to leave the site they were already on. The solution: create a page at the host’s website with the “look and feel” of the affiliate’s website.


This is just one example. Overall, if your software does things like improve processing speed, decrease dynamic memory load, reduce network traffic, obviate certain steps or processes performed by a computer, and so forth, then there is an excellent argument your software is patentable.


2) Does My Software Have a Unique Graphical User Interface (GUI)?


I would say that a significant portion of new software falls into this category. Perhaps your software is more user-friendly. Or perhaps your GUI allows users to interact in a way not previously possible. Or perhaps your GUI conveys or organizes information more efficiently.


In any of these cases you may want to consider both a utility patent and a design patent. While a design patent is generally narrower in scope, if the design of your GUI gives you a competitive advantage such that other businesses would want to copy it, then a design patent will help you prevent that.


3) Does My Software Process Information In a Unique Way?


If you have developed a data analytics solution, such as a new way of analyzing data, a new machine learning model, or a new artificial intelligence model, your software may be patentable. Consider whether your software takes a unique set of outputs and/or generates a unique set of outputs. And, while algorithms are generally unpatentable alone, you may be able to patent the unique way you implement an algorithm.


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For each of these 3 categories above, focus on what the computer does and how your software improves computer technology. It may be the case that your software is really designed to improve people’s lives and/or how businesses operate. However, by focusing on the computer aspect of your software, you greatly increase the chance you’ll get a patent.


If you’re still unsure whether your software can be patented, schedule a free consultation with us, and we’ll help you map out an intellectual property strategy!

Conclusion

Can Software Be Patented?

Can Software Be Patented?

Yes, but you have it needs to fall into one or more of the following criteria:

1) Does my software make computers or other electronic or mechanical systems work better?

2) Does my software have a unique graphical user interface (GUI)?

3) Does my software process information in a unique way?

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