Despite the controversy over whether software should be patentable per se, 62% of all patents issued by the U.S. Patent Office are directed to software-related inventions. Thus, while we acknowledge the viewpoint of some that software patents are a threat to innovation and should not be granted, the debate about whether software should be patentable is essentially an academic exercise, and the focus must be on practical considerations, including which kinds of software are patentable and when the software owner should apply for patent protection.
When Should Software Be Patented?
Before obtaining a patent, there are a few things worth considering. While developing new software might be exciting, don’t forget that you should be thinking about how to protect your innovation. If you produce a piece of software and it has the potential to be marketable or particularly valuable to your company, you must consider developing a customized IP strategy to protect your software IP assets.
In general, you can file a patent application during any stage of software development. But for various reasons, the application can usually wait until you have a minimum viable product or at least a system that functions on some level. This gives the software developer enough time to try to implement each of the desired features into the system and provide substantial feedback as to what can be developed further and what cannot.
At the outset of developing an IP strategy, consider the following questions:
- What are your short-term and long-term goals for your IP assets? You should consider the life cycle of your software and how long will it have sustained lasting power in the marketplace.
- How valuable is the software asset to your company? Understanding your intellectual property valuation can help you determine what types of intellectual property protection are the best fit.
Various aspects of software-implemented inventions may be eligible for patent protection. For instance, the underlying process that the software performs could be protected by a utility patent, while tangential features of the software, such as graphical user interfaces, displays or icons, can be protected with design patents. You can see some examples of recently issued software-related patents here.
When Shouldn’t Software Be Patented?
Not all software is patentable. You shouldn’t seek patent protection for software that doesn’t have a novel process or function or that has been disclosed in the public domain for more than 12 months unless substantial improvements or updates have been made since the first date of public disclosure.
The only time you should consider seeking a patent is when you develop an innovative software or improvement to existing technology. The focus should be on what novel processes your software performs, and whether your software moves technology forward.
Can Software Code Be Patented?
The actual code of your software is not patentable. While a patent does not protect the actual code created for your software, copyright protection can.
Unlike patents, copyright protection attaches as soon as you put the code into a tangible medium. However, it can be difficult to prove the creation date, so filing with the US Copyright Office can help secure your protection and have proof of the creation date.
Considering Patenting Your Software?
Developing new software can be an exciting and profitable venture. However, you’ll want to protect your innovations while you pursue a profit. Understanding how and when to pursue patent protection will help you effectively protect your software and its code.
It’s smart to speak with a patent attorney early on. This ensures you don’t miss an opportunity and expose you and your startup’s intellectual property to unnecessary risk.
Request a free consultation today and speak with one of our skilled attorneys about protecting your software and valuable intellectual property.