“It depends.” This is the classic refrain of everyone who has ever attended law school. It is also the go-to phrase for everyone who has ever tried to explain the exact definition of the term “software patent,” as there is no one clear explanation that applies worldwide. Let’s take a proverbial 10,000-foot view at the complex landscape that is software patent law.
Software vs Hardware
As a quick review, “hardware” refers to the physical components of a computer and the accessories, such as printers, scanners, etc., that are included in the system. “Software” is the set of instructions that tells the hardware how to perform its job. Such instructions commonly come in the form of operating systems and programs (or “apps,” as they are widely known today).
Unlike hardware, you cannot hold software in your hand in the same manner that you can hold a piece of hardware in your hand. The fact that software is mostly intangible computer code and algorithms does not prevent it from being eligible for patent protection in the United States.
What Do U.S. Software Patents Cover?
Software patents cover aspects of computer programs such as methods, algorithms (although these may have separate copyright protection and are not directly “patented” in a traditional sense) and the way the algorithm(s) and methods are implemented into the physical computer system. Thought of another way, a software patent protects the functionality of the device. As such, the patent claim(s) must have some type of practical application in order for the invention to be patentable in the U.S. Software that is only directed at an abstract idea, such as a way to position a telescope or satellite array that is based on a mathematical formula or organizing information and manipulating information through mathematical correlations, is not eligible for patent protection in the U.S. See MPEP §2106.04(a)(2).
What is the International Landscape of Software Patents?
The European Union Intellectual Property Office does not grant software patents using the same criteria as the U.S., and therefore, software patents in Europe – and elsewhere – typically operate under very different framework than domestic patent law provides. In Europe, software patents do not cover specific computer programs; rather, they cover the technical effect that the computer-implemented software (the “invention” itself) produces.
Some jurisdictions, such as Japan and South Korea, require that the software itself must be implemented by physical hardware in order to be eligible for patent protection.
Meanwhile, in India and many other countries, computer programs are simply not eligible for patent protection. This seems to be the prevailing view, at least outside of the G7 and European Union nations.
What’s the Best Advice on Software Patents?
This is a classic case of “it depends.” With the advent of the internet, it is possible now for software services to be delivered via the internet to almost any location on the planet. That means that U.S. legal considerations may not be the only ones that you and your business need to keep in mind when it comes to the possibility of seeking patent protection for your software. Or, alternatively, you may decide that not seeking patent protection is your best course of action, thereby minimizing your chances of having to disclose your exact computer code or algorithm.
At Sand, Sebolt & Wernow, we have experts on hand to discuss these and many other facets of your invention. We’re an intellectual property law firm that specializes in patents, trademarks, copyrights, IP litigation, foreign filings and trade secrets. We understand that successful companies are built on innovative ideas, products and brands. Our IP attorneys will make sure your intellectual property is protected in today’s competitive business environment. Contact us today.