Can Software Be Patented in the US?

Yes, software can be patented in the US, but it must meet specific legal requirements. Software patents typically cover new and inventive processes or methods performed by a computer, rather than the code itself. The functionality of the software is what qualifies for patent protection, not the actual lines of code, which are protected by copyright law.

Legal Requirements for Software Patents

To be patentable, software must meet the following criteria under US patent law:

1️. Patent-Eligible Subject Matter (35 U.S.C. § 101)

• The invention must involve more than just an abstract idea.
• Abstract ideas (e.g., mathematical algorithms) are not patentable unless they are applied to a specific practical application.
• Example: A general algorithm for sorting data is abstract and unpatentable, but if it is part of a specific process that improves computer performance, it may be patentable.

2️. Novelty (35 U.S.C. § 102)

• The software invention must be new and not disclosed in prior art.

3️. Non-obviousness (35 U.S.C. § 103)

• The software must not be an obvious improvement to someone skilled in the field.

4️. Usefulness (35 U.S.C. § 101)

• The software must have a practical, real-world application and be capable of being used in a tangible way.

 Key Supreme Court Precedents for Software Patents

1️. Alice Corp. v. CLS Bank International (2014)

• This landmark decision established the „Alice test“ to determine whether software is patent-eligible.
• The Alice Test:
  • Step 1: Determine whether the claim is directed to an abstract idea (e.g., basic algorithm, mathematical formula).
  • Step 2: If it is abstract, determine whether the claim contains an „inventive concept“ that transforms it into a patent-eligible application.
• Impact:
  • Purely abstract software algorithms are not patentable.
  • Software that produces a technical improvement or solves a specific technical problem is patentable.

2️. Bilski v. Kappos (2010)

• The Supreme Court ruled that abstract ideas (like mathematical formulas) cannot be patented unless they are applied to a specific, practical application.

What Types of Software Are Patentable?

To be patentable, software must demonstrate a technical improvement or solve a specific problem. Examples of patentable software include:

• Software that improves computer performance
  Example: An algorithm that speeds up data processing or reduces memory usage.
• Specific, practical applications of algorithms
  Example: A machine-learning algorithm specifically applied to improve fraud detection in financial systems.
• Innovative data processing methods
  Example: Image processing software that enhances image recognition accuracy.
• User interface innovations
  Example: A unique gesture-based navigation system for mobile devices.

What Software Cannot Be Patented?

Software is not patentable if it:

• Is directed to a purely abstract idea without a specific application.
• Represents basic mathematical formulas or algorithms.
• Involves generic computer implementation without a technical improvement.
• Automates routine business practices without technical innovation.

Software Patents vs. Copyright

Key Takeaway

Yes, software can be patented in the US, but it must:

• Go beyond an abstract idea and include a technical improvement.
• Be novel, non-obvious, and useful.
• Solve a specific technical problem or offer a real-world application.

While software patents offer strong protection, they require careful drafting to meet the Alice test and avoid being rejected as abstract ideas.