Patenting a Software Program

With all of the developments in the tech industry, and with the explosion of the mobile app market, many people are getting their innovative wheels turning and creating new software programs that have various functionalities. Software patents have always been a tricky subject, but they are coming under more scrutiny now that more and more people are trying to file for them. So, how do you protect your original software idea?

In the past, a product needed to pass the “machine or transformation” test, which basically states that the invention would have to either be tied to a specific machine, or it would need to transform something into something entirely different in order for it to be patentable. When you apply that test to software, not many programs would pass. The US Supreme Court case, Bilski vs. Kappos, created an important distinction in the law, saying that the “machine or transformation” test was no longer the final say in whether or not something could be patented. 

The point is that software patents must be particularly carefully written. They need to sufficiently describe a unique functionality that is not simply a by-product of something else. Many people try to patent automation software, for example. According to current patent laws, a program that’s only function is to simplify something else that has already been invented is not a patentable program. The idea needs to be truly new.

It may help to know, though, that the code does not need to be written in order to apply for a patent. Just like with physical inventions – a prototype need not be built. You only need to be able to clearly communicate the purpose of the idea and the exact functionality that it will carry out. Having some code written out is not a bad idea, but it is not necessary, so don’t let that hang you up.

If you are considering applying for a software patent, do some thorough research on patents that have been successful. Knowing how to word things properly will be extremely helpful. Avoid simple and common mistakes so that you can make sure your new idea is legally protected.



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