The concept of a “software patent” is somewhat of a misnomer. A pure software algorithm that is disembodied from any technology or machine is probably not “eligible subject matter”, meaning that the subject matter of the patent claims won’t even be examined for any other patentability issues like novelty.
However the software processes operating within an invention that produces useful, concrete and tangible results can probably be included within the patent claim set for the invention. This is generally true even when the software processes are essential for producing the useful, concrete, and tangible results provided by the invention.
The question of “can I patent an app” usually refers to the question of whether an invention’s patent claims are”eligible subject matter”. This means it must be eligible subject matter to be considered for a patent.
Patent claims directed to software processes and business method processes may be patent eligible subject matter if they are not directed to abstract ideas, laws of nature, or natural phenomenon.
To patent a invention that utilizes a software application, whether the software executes on a mobile device, a desktop or laptop computer, or a dedicated computer or server, the claims in the patent application must be directed to more than just an abstract idea such as an algorithm.
Even if the patent claims contain “eligible subject matter”, this does not mean that a patent will definitely be granted on the claims. An answer to the question of “can I patent an app” should mention the fact that subject matter eligibility is just one of a number of requirements to patent an invention utilizing computer software.
To be patentable, a “software invention” must not only be “eligible subject matter”, its patent claims must also meet all other requirements for patentability, such as utility, novelty, and other requirements.
Patent claims for inventions utilizing computer software, including mobile apps, will usually need to satisfy the criteria of a so-called “machine or transformation test” to remain within the scope of patentable subject matter. The “machine or transformation test” indicates that a patent claim is directed to patent-eligible subject matter if it is tied to a particular machine or apparatus, or if it transforms a particular article into a different state.
In addition, to be”eligible subject matter”, the patent claims of an invention that utilizes software must recite additional elements. These additional elements must amount to improvements to the functioning of the computer itself that are beyond the pure functionality of the computer.
What are some of the Benefits of Patenting an App?
A patent on an invention, whether or not the invention utilizes software, is a property right granted by the U.S. federal government to the patent owner that allows the patent owner to legally exclude others from making, using, selling, offering to sell, or importing the patented invention in the United States during the term of the patent.
In the event another party infringes the patent, ( ie the other party without authority makes, uses, sells, offers to sell, or imports the patented invention in the United States), the patent owner may seek significant damages against the other party by initiating legal action in a Federal Court.
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