Software has become one of the biggest concerns for our clients. They are creating software applications every day and trying to figure out what, if anything, is patentable.
When we are asked this question by developers, we try to learn more about the software, the underlying design and architecture of the software system to determine if there is a new invention that lies somewhere within. By new invention, we look to see what it is that you had to create and what feature or function that did not previously exist but provides some results or advantage that sets your software apart from competitors. On the flip side, if we are simply talking about the development of code that doesn’t have a new feature or function, that would most likely not be eligible for a patent.
Laws Surrounding Software are Tricky
The laws encompassing software are currently in flux and unfortunately there is still no clear, easy answer to the question, “What makes software patentable?” Again, at this point in time, we evaluate software inquiries by our clients on a case-by-case basis.
We also work to examine with as much scrutiny as possible whether the possible software invention falls into some kind of judicial exceptions that have been created. For example, if you are improving how a computer functions, that generally would be a patentable subject matter.
However, the world of software is constantly changing, and new cases are coming out every few months that are altering how we would counsel our clients to proceed with inventions related to software and other topics, including business methods and processes.
You May Still Have Other IP Rights
It’s also important to keep in mind that if you can’t obtain a patent for your software, you may still be able to obtain a copyright. The words, codes, schemes, etc. that you are working to develop in your software are considered creative works in a fixed medium that can be protected just like a movie, book, or other work of art. In some cases, your attorney may advise you to file for both a copyright and a patent depending on the nature of the software.
Another Consideration for Software Creators is Trade Secret
For some clients, it is better to keep the code secret. By filing a patent or a copyright, you must disclose your secrets, resulting in a loss to your competitive advantage. So, the option of keeping the code a secret must be discussed as early as possible because once the secret is revealed, it is no longer a secret and cannot be protected under trade secret law.
Have More Questions?
We believe that keeping an open line of communication with an intellectual property attorney during the development phase of your software is key. We will work with you through each step of the process to evaluate what you are creating so that you don’t miss any opportunities to secure rights that will provide you leverage, protection, or chances for monetization down the road. If you have questions or you’d like to learn more about how we can assist you, contact us at (888) 666-0062 to schedule an appointment.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
