How long do software patents last? Securing a patent for proprietary software is a crucial step in protecting innovation and gaining a competitive edge. While the patent process takes time, understanding the timeline can help startups plan and budget accordingly. This article covers the duration of software-related utility patents, the key phases of the application process, and strategies to expedite registration.
What Is a Software Patent?
While there is no distinct “software patent,” software-related inventions are typically protected with utility patents. A utility patent grants the holder exclusive rights to an invention that has functional aspects, including software-based processes, algorithms, and improvements to software implementation. In the U.S., utility patents covering software are issued by the United States Patent and Trademark Office (USPTO) after a rigorous examination process by your assigned patent examiner . Eligible inventions must meet the criteria of novelty, non-obviousness, and usefulness, requiring well-articulated claims directed toward an “inventive concept” and merely an abstract idea.
Provisional Patents: An Early Advantage for Inventors
A provisional patent application is an optional, lower-cost utility patent application that allows inventors to establish an early filing date or a priority date while they continue to develop and refine their technology. Its important to understand that a provisional patent application is not examined by the USPTO and does not grant patent rights on its own, but it provides patent-pending status for up to 12 months until a non-provisional patent application can be filed.
Key benefits of a provisional patent application include:
- Lower upfront costs: Provisional applications are significantly cheaper than non-provisional applications, making them accessible to startups and solo inventors.
- First-to-file protection: Establishing an early filing date is crucial under the U.S. first-to-file system, ensuring competitors cannot patent similar technology.
- Flexibility for development: Since provisional applications do not require formal claims or complete specifications, inventors can refine their software before filing a full utility patent.
- Investor and market validation: With patent-pending status, startups can pitch to investors, hire developers, test the market, and begin generating revenue while maintaining potential patent rights.
- Stronger final application: Since the scope of a non-provisional patent cannot be expanded once filed, a provisional application gives inventors time to optimize their claims and enhance their invention before finalizing the patent.
It is important to note that provisional patents are only available for utility patents, not design patents. Additionally, a provisional patent application must be converted into a non-provisional application within 12 months, or your priority date will be lost.
Filing a provisional application is often the first step toward securing robust intellectual property rights while maintaining flexibility in development and commercialization.
Why Does It Take So Long To Get a Utility Patent for Software?
In 2024 the USPTO examined over 700,000 patent applications leading to processing delays and delayed pendency times. Several factors influence the USPTO’s pendency times including:
- The complexity of the software invention
- The art unit assigned to your application
- The number of pending office actions assigned to your patent examiner
- The examination program selected for your application
- The quality and completeness of the initial application
Despite the wait, a granted patent provides significant business advantages, including exclusive rights of the technology in your marketplace, increased market valuation, and monetization and fundraising opportunities. Additionally, even while your application is pending, you will have patent-pending status, which signals to investors, competitors, and potential partners that you have a proprietary innovation in progress. This status can deter copycats, enhance your business’s credibility, and provide leverage in securing funding or licensing deals while you await final patent approval.
The Utility Patent Application Timeline for Software
Understanding the phases of the patent process can help startups set expectations and plan accordingly.
1. Prior Art Searches & Pre-Filing (1–3 Months)
Before submitting a patent application, conducting a thorough prior art search and patentability analysis is essential. Prior art refers to any publicly available information—such as existing patents, published articles, or prior product releases—that may relate to your invention. The USPTO uses prior art to determine whether an invention is new and non-obvious.
A prior art search can help:
- Assess the novelty of an invention: If similar technology already exists, modifications may be necessary.
- Avoid wasting resources: Identifying conflicting patents early prevents unnecessary filing costs.
- Strengthen the application: A clear understanding of prior art helps define stronger, more enforceable patent claims. Additionally, it provides insight into how the scope of claims should be drafted. If prior art reveals similar inventions, claims can be narrowed to avoid overlap and rejection. Conversely, areas where no prior art exists may allow for broader claims, increasing the patent’s strength and potential market value.
Startups can conduct preliminary searches using the USPTO’s online database or Google Patents, but a patent attorney can perform a more comprehensive search. A well-executed prior art search helps minimize the risk of rejection and ensures the application is positioned for approval.
2. Application Preparation (1–4 Months)
Drafting a detailed and well-structured patent application is critical. A strong application includes comprehensive claims, technical descriptions, and legal arguments. Collaborating with an experienced patent attorney can prevent costly delays and increase approval chances.
3. Patent Examination & Prosecution (1–3 Years)
Once filed, the USPTO reviews the application and issues an Office Action, typically within 14 months. Most applications undergo multiple rounds of examination, often taking 22–30 months to reach a final decision. Expedited processing options like Track One prioritized examination can shorten this timeline to as little as 6–12 months.
What About Design Patents for Software?
For software inventions involving graphical user interfaces (GUIs), design patents can provide additional protection. Unlike utility patents, which protect functionality, design patents protect the ornamental appearance of a product, such as the unique visual layout of a GUI.
A design patent lasts 15 years from the grant date for applications filed on or after May 13, 2015. For those filed before this date, the protection term is 14 years from issuance. Design patents are particularly valuable for tech companies seeking to protect the visual elements of software products, as they can be easier to enforce than utility patents in cases of infringement.
Examples of Software-Related Patents
Apple, a leader in software and hardware innovation, has secured numerous patents to protect its technology. Some notable examples include:
- Utility Patent Example: In March 2024, Apple was granted a utility patent for the intuitive control interface of Vision Pro, which enables users to control external devices, such as turning on lamps at home, and ensures seamless addition of devices to a wireless network. View Patent
- Design Patent Example (iPhone Shape): Apple holds design patent USD618677S1, titled “Electronic Device,” which covers the ornamental design of the original iPhone, characterized by its sleek, minimalist appearance. View Patent
- Design Patent Example (User Interface): Apple also secured design patent D644,239, which protects elements of the iOS user interface, including features like the virtual keyboard and various icons that contribute to the distinctive look and feel of Apple’s devices. View Patent
These patents illustrate how major companies use utility and design patents to safeguard both the functionality and aesthetic appeal of their innovations.
Costs of Obtaining a Utility Patent and Design Patent for Software
The cost of obtaining a patent depends on several factors, including the complexity of the invention, attorney fees, and government filing fees. Below is a breakdown of estimated costs for both utility patents and design patents for software-related inventions.
Provisional Patent Costs
A provisional patent is a lower-cost, temporary filing option that provides patent-pending status for up to 12 months. It allows inventors time to refine their invention before filing a full non-provisional utility patent.
- USPTO Filing Fees: $60–$300 (depending on entity size: micro, small, or large)
- Patent Attorney Fees: $2,000–$6,000 for drafting and filing
- Prior Art Search (optional but recommended): $1,500–$3,500
Total estimated cost: $2,500–$8,000+
A provisional application must be converted into a non-provisional utility patent within 12 months, or the filing date will be lost.
Utility Patent Costs
Utility patents are generally more expensive due to the detailed examination process and back-and-forth prosecution. Typical costs include:
- USPTO Filing Fees: $300–$1,820 (depending on entity size: micro, small, or large)
- Patent Attorney Fees: $8,000–$20,000+ for drafting and filing
- Prior Art Search: $1,500–$3,500 (recommended before filing)
- Prosecution Costs: $3,000–$10,000 (for responding to Office Actions from the USPTO)
- Maintenance Fees (due after grant):
- 3.5 years: $1,000 (small entity)
- 7.5 years: $1,880 (small entity)
- 11.5 years: $3,850 (small entity)
Total estimated cost: $10,000–$25,000+ over the lifetime of the patent.
Design Patent Costs
A design patent, which protects the appearance (such as a graphical user interface or software layout), is typically less expensive than a utility patent.
- USPTO Filing Fees: $250–$1,020
- Patent Attorney Fees: $1,500–$4,000
- Prosecution Costs: Typically lower than utility patents, as fewer Office Actions are issued
- No Maintenance Fees: Unlike utility patents, design patents do not require ongoing maintenance payments
Total estimated cost: $2,500–$5,500+ for the lifetime of the patent.
Factors Affecting Costs
- Complexity of the software: Highly technical software, such as AI-driven applications, may require more detailed patent applications, increasing costs.
- Number of Office Actions: If the USPTO issues multiple rejections, responding to them will add to legal expenses.
- Expedited Examination: Programs like Track One for utility patents require additional fees but can speed up the process.
Investing in a strong patent strategy with a skilled patent attorney can help minimize costs and maximize the enforceability of your patent.
Expediting the Patent Process for Software-Related Inventions
Patent applications for software-related inventions often face long pendency times in the patent examination process. However, several strategies can significantly accelerate the review and approval of their applications, helping them secure patent rights more quickly.
1. Track One Prioritized Examination
The Track One program allows applicants to expedite the examination process, reducing pendency times to 6–12 months instead of the standard 2–3 years. This option requires an additional fee and is available for a limited number of applications per year. By opting for prioritized examination, startups can obtain patent protection more quickly, enabling them to attract investors, license their technology, or enforce their intellectual property rights sooner.
2. Patent Prosecution Highway (PPH)
If a startup has filed a patent application in a foreign jurisdiction and received a favorable ruling on at least one claim, it may qualify for expedited examination under the Patent Prosecution Highway (PPH). This program allows applicants to leverage prior positive examination results from foreign patent offices to accelerate the review process at the U.S. Patent and Trademark Office (USPTO). The PPH can significantly reduce the time to final disposition, as examiners can rely on prior art search results and claim analyses from participating patent offices.
3. Petition to Make Special
Startups may also seek a Petition to Make Special, which accelerates examination under specific circumstances, such as:
- The applicant is 65 years or older.
- The applicant is suffering from a serious health condition.
- The invention relates to technologies that enhance environmental quality, promote energy efficiency, or contribute to anti-terrorism efforts.
If eligible, this option can provide a rapid path to obtaining a patent without the additional fees associated with prioritized examination.
4. Accelerated Examination (AE)
The Accelerated Examination (AE) program requires applicants to submit a pre-examination search document and a detailed examination support document (ESD). These documents must outline:
- The prior art search strategy used.
- A comparison of the claimed invention against prior art references.
- A detailed explanation of why the claims are patentable.
While AE can lead to a final decision in 12 months or less, it requires significant upfront work, making it less commonly used than Track One or PPH. However, for well-prepared applicants with strong claims, AE can be a viable option to expedite the process.
Choosing the Right Expedited Path
Each of these strategies has specific eligibility criteria, costs, and procedural requirements. Track One is the fastest and most straightforward for those willing to pay the extra fee, while PPH is ideal for companies with international filings. Petition to Make Special applies in limited personal or public interest scenarios, and AE demands extensive preparation. Startups should carefully evaluate these options in consultation with a patent attorney to determine the best strategy for securing early patent protection.
Speak With an Experienced Software Patent Attorney
Software patents, when you monetize software patents, are an invaluable asset that will bring your company short-and long-term monetization opportunities while keeping competitors away from your proprietary process.
At RLG, our attorneys have the experience and expertise in preparing your software patent application including drafting a thorough disclosure document and outlining your software system’s processes of use and point of novelty. We will work closely with you to draft a comprehensive application and corresponding drawings for one transparent fixed fee to ensure your software patent will be issued and have sustainable legal protections in the future.
The RLG Guarantee
In addition to a fixed-fee billing approach, RLG offers a money-back guarantee on all prior art searches, provisional patent applications, design patent applications, and trademark applications. To be clear: should our team determine that your invention is not patentable in light of the prior art, a full refund will be provided. If patentable, we will credit the cost of your search towards your new application.
For the trademark and design patent applications, this means that if your application does not receive a Notice of Allowance for any reason, we will provide a full refund. Our trademark and design patent application packages include all search, preparation, office action, USPTO correspondence, and USPTO filing fees. Please call us at (954) 951-0154 for a free consultation or take our intelligent IP quiz to see what protection is best for your invention.
