Can I Protect My Software Application with a Patent?

In the U.S., software developers are continually developing new and useful software applications.  Further, software developers often want to protect their software application from copycats.  A question that is often asked is: “can I protect my software application with a utility patent to prevent copycats from reverse engineering my application?”

Although utility patents are not typically granted for software applications as a whole, certain aspects of the software application may be protectable with a patent. 

To be allowable, a patent application for a software application must: (i) describe and claim the functionality that is new and nonobvious over prior software applications and patents, and (ii) properly describe how to make and use the software application.  Further, it is helpful if the software application is not considered a “business method.”

In order to describe and claim the new functionality of the software application, it is helpful to have a patent search completed upfront so that the prior functionality is well understood. 

The three areas of a patent application that must be carefully drafted to properly describe how to make and use the software application are: the claims, the written description, and the drawings.

1. Software Patent Application Claims

The claims in a utility patent application are paragraphs that define the scope of protection of the invention.  When a patent application is issued, it is actually the claims (i.e., the claimed invention) that are being allowed to issue.  A software application can be protected utilizing system claims, method claims, and article of manufacture claims.  A system claim can define specific components of a system that perform the new steps of the software application.  A method claim can define the new steps of the software application that are performed by specific system components.  An article of manufacture claim can define a memory device having software instructions for implementing the new steps of the software application.

2. Software Patent Application Written Description

The written description must provide sufficient information such that a skilled software developer could make and use the software application.  Thus, it is beneficial if the written description describes: (a) the system components/hardware that implement the software application, (b) the method steps performed by the application, (c) any relevant databases or data structures utilized by the application, and (d) any relevant graphical user interfaces (GUIs) utilized by the application. 

3. Software Patent Application Drawings

The drawing should illustrate the information described in the written description.  Thus, the drawings should include: (a) a block diagram or circuit diagram of the system components/hardware that implement the software application, (b) a flowchart of the method steps performed by the application, (c) drawings illustrating any relevant databases or data structures utilized by the application, and (d) drawings illustrating any relevant GUIs. 

It is noted that business methods are particularly difficult to obtain patent protection on in the U.S.  A software application is considered a business method if it focuses on a new way of conducting business or a commercial activity.  Due to federal court decisions that invalidated some business method patents, the U.S. Patent & Trademark Office has implemented relatively strict examination procedures for business method patent applications.  As a result, the patent allowance rate for this type of application is relatively low (e.g., 20-35% over most years).  Accordingly, if a software application is considered a business method, the entrepreneur should understand the probabilities of success upfront before proceeding with a patent application.

In summary, certain aspects of a software application may be protectable with a patent.  Further, the patent application must be carefully drafted to have the highest probability of obtaining patent protection for your software application.  When issued, the patent can be used to prevent copycats from selling similar software applications in the U.S.

If you have a new software application that you are interested in protecting, please contact us at 248-853-1422.