IP Essentials: Q&A Series

Q Is software patentable? A In the United States, many software-based inventions are patentable. However, certain kinds of software inventions—most notably those that improve on traditionally human activities, such as marketing and finance—face steeper hurdles than software relating to inherently computer-based technology. Many other countries also allow software-based inventions to be patented to some extent, subject to their own restrictions and requirements. Q What makes software patents unique? A Because of their proximity to mathematical concepts and what the patent office considers “abstract ideas,” some software-based inventions are not considered patent-eligible subject matter. In recent years, the viability of software patents has been under considerable scrutiny in the United States, including several notable federal court decisions that have made software-based inventions more challenging to patent than many other kinds of inventions. However, the United States Patent and Trademark Office (USPTO) has instituted guidance that provides a path to patentability for a wide range of software-based inventions. To satisfy those guidelines and show that a software-based invention is patent- eligible, a patent application for a software-based invention must include certain types of information that are not required in other kinds of patent applications.

A patent gives the patent-holder the right to exclude others from making, using, offering, and selling the patented invention. A software patent covers an invention implemented as software, which may include the algorithmic steps, executable code, and/or a hardware system that uses the software. SOFTWARE PATENTS



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