There are many myths and misconceptions regarding patentability of software related inventions. These range from the bluntly uninformed “you can’t patent software” arguments, to propaganda on the impacts software patents have on research and industry.
Regardless of what is portrayed, software related inventions are in fact patentable in many jurisdictions. In fact, software related inventions generally fall under the same rules as any other type invention. As such, for software to be patentable it must be novel (i.e. new) and innovative or inventive. Furthermore, the software must comprise patentable subject matter. This post focuses on patentable subject matter is relation to software.
Before trying to determine whether your software may be patentable, we suggest focusing on identifying innovative aspects in the software. There are often many features in a software application, however you should consider a) what sets your software apart from other software, and b) of this, what would have value in being able to prevent your competitors from doing. Once you have identified such features of your software, you are generally able to more efficiently consider patentability of these aspects.
1. It includes Technical Features
A general requirement for patenting of software related inventions is the presence of technical features in the invention. In relation to software and apps, the technical features often include data processing (e.g. processing of user input, output, location or other user specific data), but can include other features, such as the display of data if that provides a technical advantage, the control of a technical process, and data compression and encryption.
The technical features should generally provide more than merely linking an abstract idea to a particular technological environment.
Examples of non-technical features include aesthetic creations, mere ideas, schemes or plans and mathematical formulae in isolation.
2. Solves a Technical Problem
An indicator that a software related invention is patentable is that it solves a technical problem.
Examples of technical problems range from general problems, such as making a process run faster or more efficiently, or making a system easier to use, to the specific technical problems such as enabling secure data transmission between devices, providing an auction method carried out over the internet, or pooling counters so that one common customer queue can be employed.
Examples of non-technical problems include providing a plan for becoming rich, a plan for the better Government of a State, or a plan for the efficient conduct of business.
3. Could not be Reasonably Performed using a Pen and Paper
While not generally a requirement, the fact that a software related invention could not be performed using pen and paper (and thus the computer is integral to the invention) is generally a further indicator that the invention may comprise a patentable invention.
Examples include where it would be impractical to perform the steps of the invention manually, where there are real-time (or near real time) constraints on data, or where specific features of the computing device (such as a GPS sensor of a smart phone) are utilised by the invention.
As each App or piece of software is unique, and the definition of patentability of software varies across jurisdictions, we suggest discussing patentability of your software with a Registered Patent Attorney.