This article was originally published in UpCounsel.
You have a great new idea for what you hope is the next big app. You did your research and you could not find anything out there that is even remotely similar. You have brought together investors and are working with a team of developers and now you are wondering whether you can protect your idea by securing a patent. But is it patentable? Can you patent an idea for software?
The Old Way
Not too long ago, the question of whether an idea was eligible for a patent had a really simple answer: yes! It was often said that “anything under the sun that is made by man” is eligible to be protected by a patent.
United States patent law 35 USC § 101 defines what may be patented as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This would seem to include software, and in the years since the app economy began, many U.S. patents have been granted for software.
A New Approach
The U.S. Supreme Court has intervened in recent years and has found many software inventions to be ineligible for patent protection.
Perhaps most significantly, in the case of Alice v. CLS Bank, 134 S. Ct. 2347 (2014), the Supreme Court ruled that inventions performed on computer systems could be seen as merely abstract ideas, and could therefore be ineligible for patent protection.
While this ruling, and the decisions that followed, do not completely bar software inventions from being patented, as a practical matter, it has become significantly more difficult to obtain patents for software inventions and those patents that have been granted for software inventions are significantly harder to enforce in court.
What Types of Software are Hardest to Patent?
If your idea is a business method or involves data processing, cost/price determination, e-commerce, or software used in finance, you will probably have a harder time pursuing patent protection. If your idea involves a method that uses generic (non-specialized) computer hardware in a manner in which generic computer hardware is normally used, you will probably have a tough road ahead of you.
What Types of Software are Easier to Patent?
If your idea involves specialized computer hardware that you have come up with, if your idea improves computer technology such that the manner in which the computer operates is made better, or if your idea allows computers to perform functions that, prior to your idea, computers could not perform, then you may have an easier time pursuing patent protection.
If My Idea is Patent Eligible, Will I Receive a Patent?
For software patents, establishing patent-eligibility is an important first step in obtaining your patent. However, your idea will still need to be deemed novel and non-obvious. Simply put, “novel” means your invention was not known until you invented it. “Non-obvious” generally means that each of the features of your invention cannot separately be found somewhere else.