Software deals in the technology sector went up by 64% between 2020 and 2021.

Technology is always advancing, and with it, the use of software is increasing. Many software developers want to make sure others can’t steal their work, and this is done through patenting.

Unfortunately, this presents some challenges. Many innovative products previously depended primarily on hardware, which was easy to patent. A software patent isn’t quite as simple, leading many people to ask “Can you patent software?”.

In this guide, we’ll cover everything you need to know about the software patent process. Keep reading for more.

What Is a Software Patent?

A patent is a property right to protect certain innovations, and this type is related directly to computer programs. It doesn’t have a set legal definition and is considered a utility patent.

It’s worth noting that software copyright is different in that it only protects the expression of an idea. Intellectual property law covers both software patents and copyrights.

US law considers software to be a patentable item, but only if it meets certain criteria. Firstly, it must have a commercial or industrial application (i.e. with a machine).

This prevents people from trying to patent business methods such as processes that take place mentally. The software needs to be new and unique, and it can’t be obvious to the average individual in your industry.

All information about the software needs to meet requirements set by the USPTO (United States Patent and Trademark Office). It’s important to fill out the patent application in detail before submitting it.

Getting a Software Patent

If you’ve developed some software that you want to protect, it’s important to patent it. Make sure you do this before releasing any information about it so that no one can take advantage before you’re protected.

Consider Your Needs

Something that may help you from the start is the fact that 151 countries are included in the Berne Convention for the Protection of Literary and Artistic Works. As such, any software has automatic copyright protection in these countries. This protection lasts for your entire life, and potentially up to 70 years after your death.

This is only for copyrights, however, not patents. You need to apply for software patents for every country you want protection in. You can also submit an application under the Patent Cooperation Treaty if you want to secure international protection. Applying for patents can be complicated and expensive, but many developers still do it for the protection they offer.

Define Your Software

Before you can apply for a patent, you need to specify various aspects of your software. This ranges from the overall design to small details, so you need to be thorough. Providing this to your software patent attorney will help them secure the best protection for you.

Some questions you can ask to help with this include:

• What’s the overall purpose of my software?
• What makes my software unique?
• How does my software deal with information?
• What problems does it solve?
• What’s the UI like?
• What elements of it do I want to protect?

Think about your software from different perspectives such as an engineer, an end user, and a computer. This will help you define it accurately and in more detail.

Perform Research

Look into similar computer programs to yours. This will give you a better idea of what makes yours unique, and you can highlight this in your patent application. You’ll also be able to confirm that applying for a patent is worthwhile.

If there are already various programs and software-based inventions similar to yours, the protection might not be great. You’ll need to assess if it’s worth taking the time and effort to get the patent.

This research should be extensive. You might even find other existing patents that could view your software as an infringement on their patent. You’ll need to work with an experienced lawyer to do this research properly.

Work on the Application

When everything is ready you can start the application. It should contain information on the system your software is for, a flowchart showing how the software works, and other flowcharts that explain how your software achieves its purpose.

The application should contain any details that could be important. Flowcharts make it easier to understand the various elements of your software.

Rely on Your Attorney

You shouldn’t try to patent software on your own. It’s a complicated process, and any mistakes can cause significant issues.

Working with a qualified lawyer will ensure you get everything right throughout the entire process. This is especially important when drafting your application. Having an attorney assist you will make it less likely that the USPTO will reject your application.

The Challenges of Getting a Software Patent

There are some challenges you might face when trying to get a patent for your software. The first is that it’s not always easy to define software. Anyone who hasn’t applied for a software patent before will struggle even more here.

If your software passes the “machine or transformation” test, it will be much easier to get a patent. For this, you need to show that it’s tied to a machine or can turn one thing into another. It’s possible to get a patent without this, but significantly more difficult, so it’s something you should aim for.

The code for your program is a language and doesn’t need to be done before getting a patent. You can create a road map based on the design and architecture, and this is what your patent will be based on. In your application, you’ll explain how the code can achieve the task and reach the desired result.

Patenting Your Software

Obtaining a software patent is the best way to protect your program and stop other people from stealing it. The process is very complicated, so you’ll want help from a software patent attorney.

Berkley Law & Technology Group is an intellectual property law firm. We specialize in turning innovations into patents, so we can help ensure your software patent application is completed properly. Take a look at our Software Patents page today to find out more about how we can help you.