Technology is evolving faster than ever before, and without question, computer software has changed almost every part of life in America. We put computers and the software that allows them to operate in everything from cars to coffee makers. So, in light of computer software’s usefulness, it might not come as a surprise to you that a software developer can patent their computer software, but what might surprise you are the qualifications a software developer must meet in order to be granted a patent.

Software patents are unique in that the code itself is not what is patentable, but rather, it is what the code does or the function that the code performs in combination with computer hardware that can be patented. Moreover, the number of patents in the software sector are exploding. For example, according to the United States Patent and Trademark Office (USPTO), the International Business Machines Corporation (IBM) was granted 2,276 patents, under the software development, installation, and management class of patents or patent Class 717, DP, from 2011 to 2015, and IBM’s competitors were hard at work as well with Microsoft being granted 749 patents and Google being granted 178 patents under the same patent class and during the same time period. With so many software patents being granted each year, there are a few things you should keep in mind when you are filing for a software patent.

Is My Software Patentable?

The Director of the USPTO David Kappos made a clear statement about software patents in 2012 during his keynote address to the Center for American Progress when he stated that software patents are issued for process and apparatus, which are determined to be novel and non-obvious. This statement is applicable to all innovators when they are evaluating whether or not their software is patentable and how they will file a patent application. Software patents focus either on the process that utilizes computer software or the apparatus that utilizes software both of which must be novel and non-obvious.

The focus of the patent itself is not on how the computer code, which could be copyrighted in some cases, is written but rather, on the function the code performs either on its own such as translating computer text to audio or combined with hardware such as computer software designed for smartphones. So, when you are considering whether or not you can patent the software you have created, you should consider the function it performs and the hardware that is needed for your software to perform its function.

International Software Patents

Patents that are granted in the United States do not protect inventors from patent infringement internationally, and each country has its own unique set of patent laws. As such, you should research the software patent standards of each country where your product will be used or sold and file applications for patents in each country. However, there are exceptions to this rule. For example, the European Patent Office grants patents that are enforceable in each of its member states, similar to the way a federal patent is enforceable in each individual state within the United States.

Do I Need a Software Patent Attorney?

Filing for a software patent is a complex task that often requires the assistance of a patent attorney for a couple of reasons. First, you will need to do an extensive search of all existing software patents before filing due to the massive amount of software patents that are being granted to major corporations each year, and second, software patent applications need to be drafted by someone with an intimate understanding of patent law to ensure that the application is filed correctly. An experienced patent lawyer can assist you with both of these aspects of patent filing process, which makes hiring a patent lawyer a sound investment.

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