Developing your own software requires skill, creativity, and expertise. Once you have created a type of software you are proud of, the very next thing to do is to protect it! Software engineers and inventors need software patent law to make sure that no one steals their IP. Obtaining exclusive patent rights to software can bar your competitors from producing, marketing, profiting, or licensing your patented invention. Think of Google; in its very early days, Google patented its search algorithm, PageRank, to defend against fierce rivals like Yahoo. As a result, Google substantially lessened the risk that someone would violate the claims of this patent family; as well as make it much more expensive for others to enter the market.

The reach of software patents is immense and includes Internet business methods, business software and database technologies, operating system techniques and digital functions, and so much more. Seeking broad claims that can prevent others while being specific enough to overcome patent office rejections can be expensive. Another aspect of obtaining a patent that drives up cost is the complexity of the software itself. That said, if you are confident in your product and believe in its potential, those initial costs will be nothing when compared to the long-term benefits of having a software patent that you can protect against infringers.

Two Prongs to Patent Software

There are ways to protect software with an intricately crafted software patent application. Working with a patent attorney with experience in technology and IP licensing is the best way to maximize the effectiveness of your software patent claim. Focus on the functionalities of your technological software and leave the minutiae and legalese to the experts like TBillick Law PLLC.

There are two prerequisites that your software invention must fulfil before you may file a patent application.

  • To be patentable, an invention must be new, useful, and non-obvious. Your software therefore must be unique and distinct from other prior software products.
  • Secondly, your software must ideally be tied to a tangible machine. To qualify for patent protection, your software needs to be connected to a certain computerized process or offer protection to it. Software will most likely not be eligible for a patent if it is merely connected to your business method or another intangible concept.

A preferred first step to every patent process is to conduct a patent search. The goal of the search process is to identify any potentially similar inventions that may interfere with your application. If there are inventions that are too similar to your own, it may be wise to re-evaluate your software before submitting your complete filing form.

Alternate Forms of Software Protection

It may also be beneficial to seek copyright protection on the source code itself. Whether to choose copyright protection in lieu of, or addition to, utility patent protection on your code warrants several blog posts, but I wanted to raise this issue so you’re aware of another avenue of protection. Quick reminder: Copyright law only protects the expression of your work itself, rather than how it works, how it’s made, or how to use it. You can “double dip” into both copyright protection as well as patent protection but be aware of 35 U.S.C. § 102’s statutory bar against disclosing your invention more than one year before you file your patent application. (It would be a real shame if you disclosed your code to the copyright office but waited over a year before you filed for patent protection!)

Every scenario is different, so it behooves you to chat with an intellectual property who is well-versed in both software patent law and copyright law to figure out a plan of action.  

If you are considering whether or not it’s worth it to file a patent application for your software, or if you want additional advice on how to navigate software patent law, please contact us at TBillick Law PLLC today. Give us a call at (206) 494-0020.