Are Software Patents no more?
It is not easy to get software patents as it once was, but software is still patent eligible. Software patents do not really have a universally accepted meaning. It is probably safe to say that in its broadest definition, a software patent is any patent that covers a computer implemented process. When you set out to define a patentable computer implemented process, it is essential to first view the innovation as a system that provides a desired set of functionalities.
There are many ways to obtain intellectual property protection for software creations. Many keep the software code confidential and maintain the software as a trade secret. Others seek patent protection on the software, which discloses the higher-level concepts surrounding the software without explicitly publishing the source code. Recent changes in patent law have changed what types of software inventions are patentable and the requirements for obtaining such patents. However, the evolution of the law has been ongoing for quite some time.
Many of the broadest software patents and computer-related patents that have come under enormous scrutiny and ridicule limit themselves to a vague description of the process from the viewpoint of the end user. These patents are typically characterized as business method patents, and today these types of broad patents are difficult, if not impossible to obtain.
A history of agony for software patents
- A subcategory within the more accurate general term “business method patents”.
- Thousands of issued patents in the U.S are on business methods, many of which also cover the software functionality needed to implement that business method (and thus, they are called “software patents”).
- Obtaining a patent on business methods alone, without a showing of something more that adds to a technical field, or solves a stated specific technical problem, in a novel way is very difficult, if not impossible. Please remember this as you are engineering your new business method inventions.
There is no “one-size-fits-all” solution for protecting software. Trade secret protection can be inexpensive, but can become weak if the software is publicly disclosed or otherwise circulated. Also, trade secret protection can be obtained in combination with patent protection, with the patent protecting the higher level concepts around the software and the trade secret protecting the source code or other details. In the end, it is best to determine the type of invention sought to be protected and the best form of intellectual property that fits the particular invention. Remember that a good experienced software patent attorney can still do much to obtain patent protection for your software-based inventions.