Steps To Take to Patent Computer Software in the US

Creating new computer software is just the beginning – have you begun the process of patenting, yet? Here’s how to patent computer software in the US.

You’ve spent years developing new computer software and you’re on the brink of releasing it to the public. Reasonably, you’re worried that once you do, competitors will find out how your software works and start selling similar software, diluting the market and leaching your profits.

The best way to protect yourself from this outcome is to patent computer software. While patents don’t guarantee that no one will try to create copycat software, they do secure your right to pursue legal action against those who do.

In 2020, about 60% of US patent applications were granted. As we come to rely more and more on technology, an increasing number of granted patent applications cover computer software and programming. 

Read on to learn the steps to take to patent computer software today.

Is Computer Software Eligible for a Patent?

If you’re new to protecting your work, you may have a lot of questions about what patents cover and how they differ from copyrights or trademarks. Copyrights protect original works of writing, to include things like music or architectural designs. Trademarks protect creator-identifying materials like logos. 

A patent protects:

  • Inventions
  • Processes
  • Scientific inventions

This language is vague, and it’s helpful to learn examples of what you can patent. Software generally falls under the category of a new process, and you’ll want to file a utility patent to protect it. 

How to Patent Computer Software

The patent process is long and arduous, and software patent services can make a huge difference. Here are the initial steps you’ll have to go through to submit your application to the Patent and Trademark Office. 

Step 1: Document Your Software

The first thing you need to do is provide thorough documentation of your software, including:

  • How the software operates
  • Components used for operation
  • Methods of use
  • Intended output

You will want to use more than the written word to hit all these points. You can (and should) use drawings, wireframes, and charts in your documentation, as well. 

Step 2: Articulate Points of Novelty

You can’t receive a patent for software that mimics or replicates existing software or for software that provides technical solutions in an obvious manner. While it’s likely that you’re using some existing components, codes, or functions in your software, it’s up to you to articulate what you’ve created that’s brand new.

In the world of patenting, these are called points of novelty. You need to prove as part of the patentability determination process that your software has unique features that distinguish it from the functions or limitations of existing technology. 

Step 3: Research Existing Patents

The field of software development is one of the most rapidly growing fields in the nation with over 1.7 million jobs already in existence. Unfortunately, that means that someone could have created and patented software with the same points of novelty as your software without your knowing. 

Once you have identified all points of novelty in your software, it’s time to research existing patents, also referred to as prior art. When patenting software, you’re patenting individual components that are new and innovative. A thorough investigation of existing patents will ensure that you’re only seeking to patent true points of novelty and determine your patent eligibility. 

Step 4: Review Your Application

Finally, it’s time to review your application before submitting it to the Patent and Trademark Office. If you haven’t worked with an attorney up until this point (which is highly recommended), it’s time to ask an attorney to review your materials.

Filing for a patent can seem straightforward at first, but it’s a complicated process with many unforeseen roadblocks. An experienced attorney can provide legal context and make sure that you haven’t missed any key information that could result in an immediate rejection. They can also review your research of existing patents and correct any gaps or mistakes in your materials.

Responding to Rejection

As we mentioned earlier, patent applications have an acceptance rate of about 60%. However, almost all of them will receive at least one rejection before reaching this point. Rather than giving up after receiving a rejection (referred to as a Non-Final Office Action), consider your options to further the process.

Argue Improper Rejection

If you believe that your Examiner failed to consider all elements of your application, you can argue that you received an improper rejection. Make sure to specify what you believe they overlooked and why it would overturn their rejection.

Another possibility is that your Examiner will cite a prior art reference as the cause of your rejection. If this prior art came into existence after you submitted your patent application, you can file for an improper rejection.

Amend Rejected Claims

In some cases, the claims in your application that were cause for your rejection do need amending. Maybe you failed to cite a specific element of your software that is a point of novelty. Maybe your artwork or charts were easy to misinterpret.

When you amend rejected claims, make sure to provide amendments to all claims that were rejected that you wish to overturn. You must also ensure that there is support for the amendment in your existing materials, as new matter is not allowed. 

Keeping Your Software Patent

Once your application receives approval, you will receive what is called a Notice of Allowance. This Notice of Allowance will include fees and payment deadlines that you must meet in order to receive your official patent.

Once you have your patent, you will need to pay maintenance fees to avoid losing your patent. These fees will come up 3.5, 7.5, and 11.5 years after you receive your patent. 

Work With BLTG to Patent Software

If you’ve created new software, it’s time to protect your software from competitors and misuse. If you believe that you have patent eligibility, it’s time to get the patenting process started.

Berkeley Law & Technology Group has the expertise to patent computer software and prevent unnecessary slowdowns in the process. Our team has both traditional legal experience and corporate experience to maximize our client aid. Contact usand let us know how we can help protect your intellectual property. 

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