Software is patentable in the US. Software as a class is not patentable. What is patentable are processes and machines.
The primary benefit of protecting computer software through the patent system is the strength of protection provided by the patent laws. An owner of a patent may prevent all others from making, using, or selling the patented invention. In connection with software, an issued patent may prevent others from utilizing a certain algorithm (such as the GIF image compression algorithm) without permission, or may prevent others from creating software programs that perform a function in a certain way.
In contrast, copyright law can only prevent the copying of a particular expression of an idea. In connection with computer software, copyright law can be used to prevent the total duplication of a software program, as well as the copying of a portion of software code (both of which are examples of "literal infringement"). In addition, copyright does provide some protection against non-literal infringement, such as the near duplication of screen displays, and the creation of "cloned" software. However, courts have recently been reluctant to interpret copyright protection of computer software in a broad manner. In addition, the basic tenet of copyright law is that copyright will protect only the expression of an idea, and not the idea itself. Consequently, copyright law will not prevent the creation of a competing program that utilizes the same ideas as an existing program.
As a result, software patents can provide much greater protection to software developers than copyright law. To determine whether your invention is patentable, your invention should meet three requirements:
- Novelty: your invention must be new and different from anything that has been available to the public before
- Non-obviousness: your invention must not have been obvious to an expert in the field
- Utility: Your invention has to be useful for something
In addition, obtaining a patent on computer software can be an expensive process, costing five to ten thousand dollars, or more. The choice of whether to pursue patent protection for a software invention should be made by comparing the value of the program (the potential revenue from its distribution) to the cost of the patent application process and the likelihood of obtaining significant patent protection.
Disclaimer: Data and information is provided for informational purposes only, and are not intended to provide, and do not constitute, legal advice. Persons who need legal services should contact a duly licensed professional.