Basics Facts about Software Patents 

(The information on this page is only intended as a brief introduction to computer software patent law issues. A series of US Federal Court decisions has periodically reinterpreted US patent law so as to modify or clarify certain requirements for being granted a US patent on software based inventions. Please see the disclaimer page on this website.)

Do Software Patents Exist?

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 patent eligible subject matter according to US patent law. This means that the subject matter of the patent claims won’t even be examined for any other patentability issues like novelty as long as the USPTO considers that it is not patent eligible subject matter. 

However the software processes that control an invention that produces useful, concrete and tangible results can possibly be included within the patent claim set in a patent application 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.

In that general sense, patents for software controlled inventions can be said to exist.

How are computer software patents and business method patents classified by the USPTO?

In order for any invention to be eligible subject matter for a utility patent under U.S. law, it must fall into at least one of these four categories of patentable subject matter: a process, a machine, a composition of matter, or a manufacture. Processes are also sometimes referred to as “methods”.

Business method and computer software patent claims are commonly classified as “processes” in US patent law, but they may also be classified as machines.

What is Patent Eligible Subject Matter?

However – even if the subject matter of patent claims is included in one of the four mentioned categories, that alone is not sufficient to make the claims patent eligible matter.

An invention that utilizes computer software, whether the software is executing on a mobile device (IE a mobile app), or on a desktop or laptop computer, or on a dedicated CPU or server may be patent eligible material if it the patent claims do not recite certain “judicial exceptions”.

Various US courts have defined certain “judicial exceptions”, meaning that several types of subject matter are not patent eligible subject matter. The judicial exceptions include abstract ideas, natural phenomena, or laws of nature. Patent claims reciting subject matter with these exceptions are not eligible subject matter.

To be eligible subject matter, the patent claims of an invention that utilizes software must also recite additional elements that amount to improvements to the functioning of a computer.

Please note that that a patent on an invention utilizing computer software is a different type of intellectual property than a computer software copyright. As a registered patent agent, I can only assist inventors with patents and not with copyrights.

What are the basic legal requirements for a patent to be granted on any type of invention?

A utility patent is probably the most common type of patent. A utility patent is normally filed for an invention with unique functional value, such as a machine, article of manufacture, chemical composition, or process.

For an invention to receive a utility patent under U.S. patent law, it must meet a number of requirements:

1. The patent claims must be patent eligible subject matter meaning that, among other things, the patent claims must be classified as either a process, a machine, a composition of matter, or a manufacture.
2. The patent claims must not fall into one of the “judicial exceptions” that are not patent eligible material, such as abstract ideas, natural phenomena, or laws of nature.

3. The invention must possess practical utility as opposed to ornamental value. 
4. The invention’s patent claims must be novel. 
5. The invention’s patent claims must be unobvious (or this is sometimes referred to as nonobvious).

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