Patents For Software, Applications, & Algorithms
Software is a tremendous and still-expanding market characterized by rapid innovation.
Software, including apps (applications) and algorithms, is also increasingly important to nearly everything that makes today's world run efficiently.
Software patents - whether they are for a software program, an application, or an algorithm - help developers keep contenders from taking advantage of their developments in code.
Notwithstanding, many software designers are unclear about the patent process for software and have questions that are tricky to answer.
So let's answer some of those questions. And always remember:
A Software Jedi uses The Patent for knowledge and defense, never for attack.
1. Do You Actually Need A Patent For Software?
Globally, software programs are generally protected under copyright.
Copyright protection is international and automatic - it begins as soon as a the code is written and released. Developers who hold copyrights have those rights for an extensive period of time - generally for the life of the developer plus 50-70 years after their death.
Software patents, however, are different than copyrights. They must be applied for in each country in which you seek patent protection.
To be granted patent protection, a patent application has to comply with domestic requirements and the invention (in this case, software) must be disclosed to the public.
The requirements can be fairly complex from a legal and technical standpoint. Its recommended that one seek legal expertise in trying to understand how to comply with regulations when patenting software.
Patents offer a much shorter term of protection - in general, 20 years from the date the application was filed.
If Copyrights Are So Easy, Why Is A Patent Needed For Software Inventions?
By definition, copyright protection extends only to literal expressions; copyrights do not protect the ideas, procedures, methods of operation, mathematical concepts, or processes that underly the code of the software or application. Utility patents do.
The ideas behind the software are where the commercial viability and financial value lie.
But remember, patents aren't free - they aren't even cheap (subjectively). It's incumbent upon the software developer to determine the potential fiscal value of the software and determine then if a patent is the right choice.
Considering that, using other types of intellectual property such as trademarks, industrial designs, and trade secret protection, may be more feasible or viable options.
2. What Can A Patent Protect For Software Developers?
Inventing a software product or application is a wise decision because it allows the average person to be exposed to your particular invention during their day-to-day usage of electronic devices (8 hours and 41 minutes!).
The only problem that comes from formatting this type of product is that it becomes open to plagiarization once the general public can access it.
This means that you must patent your software product or application to ensure that the public sees your unique idea rather than someone else's alteration of your original design.
So unlike copyright protection, the software patent protects the idea that underlies your application or software program.
Apart from protecting your intellectual property, the patent protects you from infringement and bars others from making, using, selling, or distributing your software (via any delivery method whether its API or thumb drive).
3. How Do You Patent Software?
The software patenting process can be broken down into three steps. But first, a little need-to-know background information.
Seriously, this next short section is really important!
Moving Like Your Product (Quickly & Efficiently)
You must understand three things about plagiarization before you learn about the 3-step patent process for software.
the two largest organizations that hold nearly 5 million applications are distributing a rather large amount of apps that are, without a doubt, duplications of another developer's original idea.
an individual that publicly releases their product without any patent protection can see the entirety of their product be plagiarized and redistributed within a 24-hour period.
the people who handle the patenting process (the U.S. Patent & Trademark Office) operate on a “first-to-file” standard, which means that a person can indeed see your product, file a provisional patent before you, and steal your original idea even though you were the original creator.
Overall this means that you should be extremely quick and detailed when attempting to patent your software innovation.
Step 1: Searching The Patent Database
Like all inventions, software patents start with a patent search.
Assuming you've already defined exactly what it is you are looking to patent - whether its a codebase or something else - the software patent process typically starts with a patent search.
A patent search helps the developer identify whether or not the nature of their software is patentable and the probable extent of being granted a patent.
If you intend on patenting your application or software, the first step involves using the U.S Patent & Trademark Office’s database.
This database is known as the “Patent Full-Text and Image Database” (PatFt) and it holds images for patents that date back to 1790 as well as full texts of patents that date back to 1976.
You must enter the keywords that relate to your product's purpose and overall composition into the index. Once this is done class/subclasses will appear.
The search may unearth similar codebases and object bases, alluded to as prior art much like in the invention process, that may restrain the breadth of the patent or block allowance of the patent altogether. This can, in a sense, be considered as successful as finding nothing.
From that point, you will need to compare and contrast your patent with all of the patents that were previously approved. This can be achieved by using the “classification schedule” that is found in the “manual of classification.”
If your particular product has already been patented, then you will need to dramatically alter your plan or throw out that idea completely. If your idea seems unique then you will be able to proceed to step two.
Here is a theoretical example of this:
Suppose you wanted to patent a coffee mug that was also a toothbrush & a money holder.
You would likely type in individual keywords that relate to your product (toothbrush, coffee mug, etc..).
Those would without a doubt show up as approved patents, which means you would not be able to use them. However, when you combine the ideas, you will see that you can patent a coffee mug that holds both money and a toothbrush.
If there was any confusion, you could use the many web-browsers as a second reference (Google has its own patent search).
Once you've done your own patent searches - which is generally to prove to yourself that your invention is unique and hasn't been done before - it is recommended you hire an expert for a second opinion. Professional patent searchers may often turn stones you haven't; the upfront investment will save you time and money in the long run.
The information attained in a patent search is invaluable in choosing whether to file a patent application and how to structure it. A great part of the art for bleeding edge software innovation is still not open at the season of the search, so the choice must incorporate estimates of the momentum state of the innovation.
Step 2: Laying A Sturdy Foundation: Filing Your Provisional Patent Application
After learning that your software is unique, you will need to file a provisional patent application.
This form will ensure that your software product is impervious to plagiarism for one year.
During that time you can release your product publicly, develop your product, and see if it is succeeding in the public eye.
After hearing that, most people are happy and say something along the lines of “That doesn't seem too difficult.”
That is a true statement for the most part, but there are a couple of exceptions that come into play when attempting to file a provisional patent form for an application or software product.
First, the traditional flowcharts, graphs, and drawings that are needed on the form may not apply to your unique idea, which means you will have to be incredibly detailed concerning the words you use in description.
Second, the code that runs your particular patent cannot be patented. This process can be understood further by analyzing the theoretical example below:
Suppose you want to purchase land and build your house.
You would need to get permission to buy the land, work toward building the house, and take the proper measures to ensure that the house is protected from everyday dangers.
Purchasing the property identifies with the concept of getting permission to patent your idea.
Putting the money in the provisional patent application ensures protection from plagiarization, which identifies with the concept of home insurance.
Lastly, putting the work toward the house is the same as introducing your product to the market and seeing the results.
The remaining question is, Does this house (your application or software product) look like it is going to be worth the time and money?
Step 3: You & Your Software's Final Form - The Non-provisional Patent
The last step to patent an application or software product is to file a non-provisional patent application.
This form must include the aspects that were likely omitted during the provisional application.
These include a set of claims, an abstract, and a set of drawings/graphs. Each of these elements entails specific detail.
The major problems that are associated with a software product or application are the “methods of processes for producing a useful, concrete, and tangible result” are too close to a previously approved patent.
The other significant error that infringes upon a non-provisional patent approval regards the changing of the original idea that was seen in the provisional application.
Overall, the purpose of this application is to give you 100% ownership of your product. Once that is achieved a thief that attempts to copy your work can be sued in court.
The mindset that should go into this patent process identifies with the following:
1. If the software or application is very close to being complete and can easily meet the requirements, then a non-provisional should be sent immediately.
2. If the product is in the beginning stages or middle stages of development, then a provisional should be sent, and a non-provisional should be filled out as the product advances or succeeds.
Make A Difference With Your Mind
At this point, you should know the in’s and out’s of patenting your unique software product or application.
Remember, a good idea does not last long when millions of thieves are constantly trying to spin your masterpiece into their money maker.
Additionally, remember that Rome was not built in a day.
You can go the express route (the non-provisional application), or you can choose to go slow and steady by choosing the provisional application first. Either way, you should be able to open your mind, do the work, and change the world for good with your unique technological innovations.
4. Do You Have To Submit Code With A Software Patent?
Your patent application should allow a patent examiner and someone "skilled in the art of software development" to understand and 'practice' your application.
You don't need to include code with your application. Most developers do not include the code.
That said, it's a really good idea to include some form of the application's code. This may be a flow chart, a code snippet, a prototype (maybe HTML), or a snapshot of the actual source code.
Submitting code with the patent application isn't an actual or legal standard or anything, but in general it your code shouldn't require a lot of explanation.
Think of how you would explain the application or algorithm to a fellow developer.
Would you send your cohort the source code? Or just share some drawings on a white board?
For a software invention, the patent application may disclose information about a computer processor or some other hardware that may be sufficient for enabling a general computing function.
However, mentioning a computer processor or hardware may not be sufficient for enabling a structure for performing a specific function, since novelty in computer related inventions most often resides in the software or the computer program that is being executed on the computer processor and not the hardware itself.
When it comes to identifying the “corresponding structure” for a computer related invention, an “algorithm or code” is the one which carries out the claimed function, and therefore the specification must disclose the "algorithm" that can be used to perform the claimed function.
The algorithm however, need not necessarily be in the form of source code; the algorithm may be expressed in any understandable terms, such as mathematical formula, in prose, or in any other manner that provides sufficient structure.
5. How Can Developers Define Their Software Applications?
Defining exactly what within a software or application should be patent protected is a bit of an elusive task.
What would actually be patented may not simply be the code; it also may not be the features or functionality of the software.
The best suggestion is to use the S.M.A.R.T. approach to figuring out exactly what you are going to patent.
Setting S.M.A.R.T. Goals
S = Specific
Do you know exactly what you want to accomplish with your software? Have yo written down all the details? Your goals must be well-defined and clear. You will need this when do do decide to patent the application or algorithm.
M = Measurable
Can you quantify and have you tracked your development progress? Do you have a goal for your software in mind and how will you know when you reach it? For instance, if you created an application that facilitates complex mathematical equations, is there a test charter that you have the solution to which you can run through the program to see if it works?
As a software developer, you should define specific criteria for measuring progress toward the accomplishment of each goal you set. One test isn't going to prove your software is viable or it works. Think bigger and bigger.
A = Attainable
Is your goal possible to achieve, albeit challenging? Goals must achievable, yet if it isn't challenging, a patent examiner or expert skilled in the art of software may disqualify your patent because of obviousness.
R = Realistic
Is your goal realistic and within your reach? Are you willing to commit to your goal? Almost certainly your goal is realistic if you truly believe that it can be accomplished. Relevant: Is your goal relevant to your life purpose? Your goal must be consistent with other goals established and fits with your immediate and long-term plans?
T = Timely
Your goal must have a clearly defined time frame including a starting date and a target deadline. If you don’t have a time limit then there is no urgency to start taking action towards achieving your goals.
This is more a strategy, but when you think about it in the context of software you have to think about relevancy. Speed to market with technology innovations is absolutely crucial.
Figuring Out What To Patent
With your goals fleshed out, some ideas should be shining through from between the lines of code of your application.
This is what you ultimately want to patent.
You are defining what makes your software unique. What problem does it solve? How does it solve that problem unlike others that may strive to do the same?
6. How Long Does It Take To Get A Software Patent?
If you do choose to continue patenting your application, you should reveal the details of the software to a patent attorney.
From that divulgence, you'll want to prepare an initial arrangement of claims and drawings that can be audited.
The second (and third) discourse of the software usually draws out additional aspects of the application that can be secured. After you as the developer are satisfied that the claims and drawings accurately capture the program and its ideas, that's when you should draft and submit the patent application.
And then wait. It might feel like this...
Examination usually starts 1-3 years later, although there are ways to accelerate this. (get in touch, we can help expedite)
The US Patent and Trademark Office (USPTO) offers a dashboard that displays all kinds of patent information. The gauges are pretty current and can help you get an idea of their unexamined application backlog, as well as how long it’s taking them to make final determinations on those applications.
Why Does It Take So Long To Get A Softwre Patent?
One reason is exactly why the "a" is missing from the word software above: Attention to detail.
We're human. Me make mistakes. A patent examiner's job is to find those (along with a million other things).
Occasionally examination starts with a limitation-necessity, where the examiner asserts that the application incorporates more than one software.
This may be because you intentionally incorporated different developments to contrast costs, and now and then because the examiner thinks the innovation is excessively broad.
The most pervasive reason an examiner would reject all, or the greater part of, your claims is because of prior art that is found in the examiner's search. Another reason the patent search is so important (and you should seek expert help with conducting one).
The examiner will assert that this art demonstrates that your innovation is not novel or was self-evident. In response, you may need to create a strategy of persuading the examiner and adjusting the patent claims to conquer the dismissals. You can talk about this strategy directly with the patent examiner to get feedback and to persuade.
To get broad claims allowed, I recommend taking the time to decide the best winning strategy for each examiner.
Based on your response, the examiner usually directs another search and may locate another reason to dismiss your application. Now and again various iterations are required before finding the right combination of language and degree to both ensure your creation and have the claims of the application allowed by the examiner.
The quantity of iterations is exceptionally subject to the breadth of the claims that you want. Broader, more valuable claims take more work, and some of the time even an appeal to be allowed.
Ensuring a software patent is a long and fairly costly process. Be that as it may, when compared with the financial expenses of allowing a contender to duplicate your innovation and take advantage of your advancement work, a software patent is a bargain.
To wrap up how long it takes to get a software patent, the truth is that it can vary. File your provisional patent application first - that gives you 12 months. Then expect 12-36 months after that as the range to be granted your non-provisional software patent.
7. Should I Consider A Patent Lawyer Or Agent?
Securing a patent attorney or patent agent makes the patent process easier.
Negotiating the process of getting a patent is not for those without patience. It can be a long process loaded with disappointment and challenges.
For most, securing the administrations of a qualified patent attorney can offer assistance.
While there may be a temptation to take every necessary step yourself, a patent lawyer is better prepared to guide the strides that should be followed.
For software patents, you'll need to be sure you secure an agent or attorney who has a degree in something akin to computer science - this is actually a legal requirement, so you know if they don't have a relevant degree its probably a scam.
It is important to understand patent expenses are non-refundable; your attorney should explain this. This makes picking a patent attorney for your accommodation all the more important.
Don't Be Discouraged, It Happens Even With An Attorney
There is always a chance your first software patent application will be declined. Many applications fail several times before being accepted.
On the off chance that your application is denied you will have the opportunity to amend your documentation, debate the choice and resubmit your application for approval. Having a patent attorney on retainer turns out to be important at this point.
Patent lawyers make their living during their employments as well. It is advisable to give them a chance to carry out their mission and help with your patent application; you will have a vastly improved chance of the door being open or a shining light at the end of a long hallway.
The Half Question: Is Legal Process Outsourcing Legit When Patenting Software?
Legal Process Outsourcing (LPO), a strong point area inside the Knowledge Process Outsourcing (KPO) space, is attracting international law firms who are outsourcing legal work to India.
Inside the LPO business, it is patent outsourcing which is catching up faster than whatever remains of LPO employments.
While major firms in the US charge up to $15,000 for preparing and recording a patent application, companies based in India convey the same work for $2,500-3,500.
This allows companies to document additional patents inside the same spending plans.
India's participation in the outsourcing market has been exceptional in the last decade.
Both overseas clients and Indian business visionaries constantly search for more up to date areas to render professional and commercial backing at reasonable expenses with the snappy turnaround.
The Indian contribution in the patent-related market is still in a nascent stage. In my perspective, it will soon take off - especially since India has many lawyers and considerably more individuals in science and designing streams. A marriage between them will clearly bolster the patent market.
Patent outsourcing incorporates literature searches, earlier art searches, innovation and patentability assessment, encroachment, FTO, Ideation, IP Valuation, Patent editing, patent claim mapping, drafting reaction to protests by US examiners, preparing/recording/arraigning trademark applications, encroachment concentrates on, other IP litigation, IP asset management, Patent mining and administration.
Amid the last couple of years, many Indian outsourcing administrations firms have developed, and the greater part of them are doing a great business. These organizations offer a variety of patent-related research.
Innovation changes rapidly, and it is regularly hard to monitor all the patterns swirling on the Internet, all the ideas rising in academia, and the range of innovations you and your rivals are dealing with.
The outsourcing firms give sophisticated support of track innovation patterns, juxtaposing academic research, market data, and patent filings information around the world.
Cheers, with a special case help you set up together your innovation roadmap and distinguish innovation partners around the world, along with other IP administrations. IP Landscape Reports are detailed "as is" analysis of a current innovation.
These reports spread broad landscape on areas of research and improvement that are critical to the customers. They are based on analysis of several hundred or even thousands of patents and other unstructured information.
There are a large number of creative ideas out there that have not been acted on essentially because the individual with the idea is excessively afraid or intimidated, making it impossible to document a patient.
That's a shame because creative individuals are the ones who take care of the world's issues. Simply imagine if the light had never been officially patented and marketed to manufacturers. We'd all be standing here in the dark!
Okay, maybe that's an amazing example. But you get the idea.
The patent process was created for individuals like you who have a great idea to take care of an issue and yearnings to see it utilized as a part of some way by others. This holds true for software patents now more than ever.
While petitioning for a software patent takes some work, time and even some cash, it's not as daunting as you think.
There's a mess of legitimate assets available online for the creator of a valuable software, application, or algorithm. Without a doubt, you'll be careful to avoid those individuals and companies offering developers unadulterated buildup and false guarantees.