Software Patenting Challenges

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Picture of Andrew Rapacke
Andrew Rapacke is a registered patent attorney and serves as Managing Partner at The Rapacke Law Group, a full service intellectual property law firm.

The explosive growth of the software industry is paralleled by the dramatic increase in software-related patent application filings. Nonetheless, obtaining and implementing a software patent can be challenging. Specifically, the challenges for software patenting are that software code often has a limited shelf life, and software patent application claims are often drafted in a way that is overly broad.

Rapid Innovation Creates A Limited Shelf Life For Software

Our planet, over the last several decades, has seen tremendous technological innovation. Those who are involved in the innovation process continue to think of new ideas and create new ways of doing things, and many technological advances now involve software and computers. Innovation changes how people do and accomplish tasks. Clearly, technological innovation moves fast. The latest “thing” today is gone tomorrow. Take the simple example of how much the act of navigation has changed because of technological advances.

Not long ago, people used paper maps for obtaining directions. Then, with the advent of the internet, came interactive websites like Mapquest and Google Maps, where users typed in a starting location and a destination and then printed out a copy of turn-by-turn directions. When GPS technology became available, people stopped frequenting online map websites and purchased GPS devices like TomToms and Garmins for directions. Recently, mobile apps like Waze and Apple Maps have made it easy to get directions directly on your smartphone.

When launching software today, there is the risk that it will become obsolete shortly in the future. At the same time, obtaining a patent requires undergoing the patent filing process – which can take a couple of years to complete. A couple of years is a long time in a field where a couple of years ago seems like the technological stone age.

When seeking patent protection for software-related inventions, time is of the essence. Since the patent process can be lengthy, inventors should submit an application that can be reviewed easily and moved along through the examination process quickly. This means drafting claim language that is clear and direct, and is not overly broad.

Overly Broad Claims in An Application

Software-related inventions are sometimes difficult to capture in words. This can make preparing a claim set that accurately and properly captures the scope of the invention very difficult. What typically happens is that the claims are drafted in a way that is overly broad, meaning the claims are written in a way that captures, or is applicable to, far more than is actually intended or necessary.

To avoid this problem, the claims in software-related patent applications should be carefully thought out, drafted to comply with all definiteness requirements, and prepared with a narrow scope (but not too narrow). The claims need to hone in on the novel and inventive feature or aspect of the software, and should include only the other elements that are necessary for the software invention to work.

Can We Help You With Your Software-Related Patent Application?

Software patent applications are some of the most complicated applications to prepare and prosecute. At The Rapacke Law Group we have a dedicated software and mobile applications patent practice area. Contact us today to schedule a free initial consultation.

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