In the present time, the software inventions are playing an important role in the technological progress. But in the case of patenting a software, things can get a little tricky. Patenting software is one of the most complex areas where you need to know the intellectual property laws behind the patenting software.
Patenting software is not just about protecting an inventor’s idea, but it is about protecting the method and process behind that idea. In this article, we are going to discuss about why is Patenting software important and we will also discuss about the various aspects of Patenting a software.
What is software patenting?
Software Patents protects the specific process that comes under a software which is being performed by a program. You cannot patent your software directly. You need to think about how you can protect your software rather than what you need to protect. Make your software unique and non-obvious so that you can file a patent for your software.
Why is software Patenting important?
As we know without filing a Patent for your invention, the competitors can copy your invention, or they can reverse engineer your software. You might have work hard to create that software. You have spent a lot of money and time on it, and it will not be good for you if someone starts using your invention. Patenting a Software will provide you the legal control over your invention and who can use the invention.
Basics of patent laws
Before going deep into the patenting software, let us talk about the basics of patent laws. As we know that a patent is a legal right, which is given by the government to an inventor who has created a new invention, which is novel, non-obvious and capable of industrial application. The time period of a patent is 20 years from the date of filing of such patent application for your invention. If your invention is fulfilling these criteria and not fall in the sections 3 and 4 of the Patents Act, then your invention is ready to be filed in the patent office.
Challenges in patenting software
After knowing the basics of patent laws, let us know about the patenting software field, and let us discuss why Patenting software is so tricky.
Software as intellectual property
Software is an intangible property. It is not a thing or a product which can be touched by us. Software is a set of instructions for a computer, and this makes its scope and protection challenging in the eyes of the law.
Legal issues
As we know that there are different types of laws throughout the world. Due to different jurisdictions in different countries, the patenting a software also varies. In some countries, you can easily patent your software. But on the other hand, some other countries allow patents for software if the software contributes to a technical solution.
Criteria for software patentability
To patent your software, it must meet the specific criteria such as:
Novelty
Your software must be original and new to everyone. If such software idea is already present in the market, then it will not be patentable. The criteria are to check whether your idea is unique or not.
Non-obviousness
Once you have created an idea or software, which is new, it must also be non-obvious for a person who is skilled in that field of art. Let us say for an example you have created software which is new for everyone, but if a person who is working in such field of software proves that your idea to create software can be achieved easily just by making some changes, then it will not be patentable.
Industrial Applicability
Let us say you have created and software which is novel and non-obvious to everyone, but still if your software cannot be used in the market or it is not solving any problem, then it cannot be patented. Your idea must not be just a theoretical concept.
These are the criteria for software patenting. Your idea to create and software must follow all of these criteria if you want to apply for a patent application.
International differences in software patent laws
Patent software in the US
In the United States, software patent is generally accepted if they demonstrate any technical solution to a particular problem. However, there are some decisions like the 2014 Allies Corporation ruling which made it harder for the Inventors to patent an abstract idea.
European Union regulations
In the EU, the laws are very straightforward. The software can only be patented if it interacts with hardware in a novel way. For an example, you have created a machine with the help of software to control it.
Software patenting in India
In the country of India, software alone is not patentable unless it shows a technical effect or interacts with the hardware same as the laws of the EU.
Case studies of patenting software
Google Page Rank Patent
Google page rank algorithm was successfully patented and this algorithm revolutionised the search engine and helped Google rise to dominance.
Amazon 1 click technology
Amazon’s 1 click patent was also patented under the laws which simplified online purchasing and gave its company a significant competitive advantage for years.
FAQs
Can all software be patented?
No, not all softwares are patentable. To qualify for a patent, a software must meet the criteria such as novelty, non-obviousness, and industrial application.
How long does it take to patent software?
A patenting process can take one year to 3 years or more, depending on the jurisdiction of the country or complexity in your application.
Is software patenting same in every country?
No, Patenting software laws are different in every country. You need to check the laws in every country before filing application in such country.
How can I protect my software internationally?
To protect your software internationally, you can file a Patent Cooperation Treaty (PCT). The PCT will help you to file just one application for different countries where you need to protect your software.
What are the alternatives to patenting software?
Other than patenting your software, the inventor can protect his software through the Copyright, Trade secrets or by taking open-source license. The copyright can protect the code itself while trade secret protects the proprietary processes of your software.
Conclusion
Patenting software is not an easy task for everyone. From understanding the intellectual property laws related to software to its complex process that requires careful drafting of a patent is not easy for an inventor. Patenting his software can provide a significant benefit by offering exclusive rights and software licensing.
If a person really wants to patent his software, then he must take the suggestions from patent agents or patent attorneys who can guide him or file the patent application on behalf of the Inventor.