Isn’t it true that software can’t be patented? This is a common misunderstanding. While the lines of code themselves are not patentable, the functional features of the software are. In reality, software-related inventions accounted for 63 percent of all patents issued in the United States in 2020.
The majority of the countries have restrictions on patenting software inventions, and the information provided by various patent offices on these restrictions has not always been clear. Furthermore, software patents are still a developing field of patent law, despite the fact that eligibility conditions are becoming more well-defined and standardized. Many people also confuse the code, which cannot be protected by a patent, with the software’s functional elements, which may be.
Copyright protects you from others copying your specific code, but it does not protect you from others developing similar software or duplicating the functionality of your code independently. As long as there is no proof of actual copying, copyright would not prevent a rival from designing a new code that achieves the same objective. A patent, on the other hand, precludes rivals from using the claimed functional parts of your program. As a result, software patents offer far more protection than copyright.
What is the purpose of obtaining a patent for software?
Patents are valuable business assets as well as effective commercial tools. It could improve the value of your business, just like any other asset, if it is beneficial to you or others in the industry. Furthermore, a patent entitles the holder to prohibit anyone from creating, using, importing, or selling functional features of the claimed software. While you may not have any plans to protect your patent rights in the near future, possible partners, investors, and strategic acquirers to whom investors may someday wish to sell are likely to appreciate the option to do so (sometimes on your behalf!). As a result, patents provide you (or your investors/partners) with a tool to limit the supply of your software on the market, making your company more appealing as an investment. Finally, your published patent portfolio can also work to deter or slow potential competitors from entering the market without you even knowing it, which often leads to you unknowingly becoming a more appealing target for acquisition.
In general, patentable inventions are those that are effective to the extent that they are capable of being used in commerce. When it comes to computer-related inventions, those that have a physical effect, optimize energy usage, or perform faster computations are often considered patentable. A software invention, like any other invention, must meet certain qualifying standards. Each jurisdiction has its own set of rules, but in general, a patentable invention must be innovative, useful, and not apparent. Consider your program’s distinctive characteristics and consult a patent attorney to see if these aspects are likely to make your software patented.
Software inventions that are just designed to automate an activity that a human might accomplish with pen and paper, or that merely provide generic components and functionalities, are often not patentable. Scientific theorems and abstract concepts, in general, are not patentable. Software inventions that do not provide any innovative function, like traditional patents, are not patentable.
You should consult a patent attorney as early as feasible in the design process, and certainly before publicly disclosing any notions or beginning to commercialize your software. Your specialist can help you identify what to protect when to protect it, and how to protect it in order to construct a portfolio of tools and assets that will offer maximum strategic value to your organization by building an initial IP strategy with you.
You can find the list of International IP Firms here.