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Are you puzzled about choosing patent as the right route to protect your software idea/app? Before picking up patenting as a means to protect your million dollar idea, don’t you think it is wise to have an explicit and expert opinion on the same? If so, you have landed at the right place.
A legal and irrefutable definition for software patent is difficult to get. Therefore it is essential to get advice from experienced attorneys to decide on the patentability of your software. This will save your valuable time from pursuing something that is legally impossible.
When considering patent protection for your software idea/app, it is important to know what kinds of software can be patented. By trying to answer the following two questions, you can decide on the patentability of your software/app ideas.
Let us move onto the details pertaining to these questions.
In general terms, whether or not your software is patentable, depends on whether or not the examiner believes it is simply a "business method".
By way of historical background, pure business methods have never been patentable. However, until relatively recently, it was pretty straightforward to patent business methods by limiting the scope to execution within a computer environment.
However, recently, patent offices around the world have looked to stem this practice, stating that "simply putting a business method 'into' a computing device" is not in itself sufficient in order to make the software patentable.
For an in-depth look at recent court case history in Australia, you can refer to our blog post about "patenting computer implemented business methods in Australia"
As such, in order to determine whether or not your software is patentable, it is important to firstly distinguish whether or not your software offers a technical innovation or rather only a business innovation. The latter generally is not patentable. There is sometimes a fine line between the two and each case is considered on its merits.
For example, the Australian patents examiners manual discusses certain signs that should be considered when determining whether or not your software is patentable.
If the contribution of the claimed invention is technical in nature
If the alleged invention lies in more than the generation, presentation or arrangement of intellectual information
If the invention solves a technical problem within the computer or outside the computer or whether it results in an improvement in the functioning of the computer, irrespective of the data being processed.
If the ingenuity in the invention is in a physical phenomenon in which an artificial effect can be observed rather than in the scheme itself.
If the alleged invention lies in the way the method or scheme is carried out in a computer.
If the claimed method merely requires generic computer implementation
If the computer is merely an intermediary or tool for performing the method while adding nothing of substance to the idea
WNPL works with Patentec, the best Patent attorneys in Australia, to give our clients the best advice and protection for their ideas.
If in any doubt it is highly recommended that you contact us, or chat directly with Patentec Patent Attorneys, who have experience in software implemented inventions for an opinion as to patentability. From our experience, Patentec Patent Attorneys would be happy to review your software application for free and give you an initial opinion as to the scope for patentability.
Having said all the features that make software patentable, it is prudent to put your ‘invention’ through some sensible analysis before filing for patent.
It should be kept in mind that the main consideration however is for the commercial merit of your software idea.
It is important to know that the main consideration as to whether or not to file a patent application for software apps and ideas is determined by the perceived commercial viability of the softer application.
For example, if you believe that your software idea has commercial significance, and it could generate or be sold for a large amount of money, then you should file a patent application despite the risk that your software idea may or may not be considered patentable down the track.
The reasons for such an approach include that being able to represent "patent pending" confers significant commercial advantages during the early commercialization stages in encouraging your investors and discouraging your competitors.
However, when filing a patent application, the patent specification should be prepared in such a manner that it maximizes the prospect for patentability, when your patent application is subsequently examined.
You should identify the main technical aspects of your software. For example, what aspects of the software couldn't be performed without the use of computer such as by hand, for example, even if it took a lot longer?
Have a clear understanding about whether your software makes any "technical contribution" as opposed to a business method innovation.
Identify whether your software perform any functionality over and above the normal use of a computing device such as retrieving information and the like?
Is there anything particularly "ingenious" in the steps implemented by the software?
If so, your software idea may be patentable.
As such, if you have a software idea/app that has commercial significance, get in touch with Patentec Patent Attorneys today who specialize in software related applications. They will also help you in evaluating the patentability of your software idea.
Nicholas Milne is an expert patent attorney with the leading Australian intellectual property firm Patentec. Nick has worked with 100s of patents to secure IP rights for his clients. Nick holds a Bachelor of Science (BSc) in Electrical Engineering with First Class Honours, Bachelor of Laws (LL.B) and a Master’s Degree in Intellectual Property (MIP)
You can contact Nick at: www.patentec.com.au/contact
