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Can I Patent my Software?

According to the United States Patent and Trademark Office, an invention that is new, not obvious, and uses a computer program qualifies for patent protection if it provides a "useful, concrete and tangible result". In other words, if a software program is capable of being put to an industrial or commercial use, it is patentable. Even patents that are purely business methods, such as the "one-click ordering" patent, are now granted.

Individuals and businesses should patent their software because the patent will protect the software and prevent all others from using, selling, or importing the patented software.  A software patent can be used to prevent others from utilizing an inventive aspect of a new software program, or from implementing the distinguishing characteristic of a new website.

For instance, Apple has patented certain features of IOS so other similar programs cannot use that feature on their products. Apple has used certain IOS patents to prevent Android competitors from copying these aspects of their products.

Why Should I Patent My Software?

The scope of protection provided by patent law is broad in regard to software. An owner of a software patent may prevent all others from making, using, or selling the patented invention for a period not to exceed 20 years. A software author with a valid patent may prevent other parties from utilizing his new and creative computer algorithm which has application to a real world problem.

In contrast to copyright law, where the author can only prevent copying of a particular expression of an idea (called "literal infringement"), patent law allows a software author to completely exclude his competitors from using even slight variations (called "equivalents") of his innovative algorithm. As a result, software patents can provide much greater protection to software developers than copyright law. As more developers understand the potential of software patents, more patents are being issued.

What Are the Limitations of Getting a Software Patent?

Software patents are still required to have the requisite attributes of a patent: they must be new, useful, and non-obvious. In addition, obtaining a patent on computer software can be an expensive process, costing five to ten thousand dollars, or more. The choice of whether to pursue patent protection for a software invention should be made by comparing the value of the program (the potential revenue from its distribution) to the cost of the patent application process and the likelihood of obtaining significant patent protection.

Should I Consult a Lawyer about Patenting my Software?

Filing for a software patent is a complex and time consuming task. A patent attorney can advise on whether obtaining a patent is worth the expense and can help you file for a patent if you decide to obtain one.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 07-01-2018 06:36 PM PDT

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