Oftentimes, an inventor utilizes software and software applications to work in combination with collected data such that a useful end result is achieved. For example, the inventor has a machine or some other device that utilizes software to improve the efficiency, reliability, and accuracy or the machine or some method. TheUnited States Patent And Trademark Office often resists granting patents on patent applications that have software components.
- Software by itself is not patentable because it is just lines of code that are capable of being executed by a computer. Software, by itself, is capable of being protected under U.S. Copyright Law with respect to the original works of authorship embodied in the software, that is, the lines of code and the arrangement of the lines of code.
- One of the obstacles to obtaining a software related patent is that under Section 101 of the United States Code it states:
Whoever invents or discovers any new and useful process. machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.
That may sound simple enough, but over time the courts have defined subject matter that is protectable and subject matter that is not protectable. For example, abstract ideas; laws of nature, and natural phenomenon cannot be patented. One of the significant problems with software related patent applications is that the United States Patent and Trademark Office deems the claims of many such patent applications as being drawn to an abstract idea and thus not patentable.
- The standard for patent protection is that the patent application must be written such that a person having ordinary skill in the art can read the application and then make the claimed invention without undue experimentation. Thus, the software patent application has to include a description and drawings of the overall software architecture that is like a general blueprint of how the overall computer system will behave and operate.
- In addition to describing and showing the software architecture, the software patent application needs to describe how the software itself operates to output the desired result. The way the software operates is to be considered in connection with the computer that is executing the software code. For example, how data is transferred, when and what calculations are made, what data is stored in certain databases and how are the databases accessed, how is processed data outputted, etc. By providing a detailed description such as this and all the associated flowcharts, routines and subroutines showing the operation and logic employed by the softwarecan provide one having ordinary skill in the art with enough information to replicate invention, and the software patent application should be able to overcome the Section 101 hurdle (but the application still has to be new and non-obvious to be patentable).
- The actual user experience when using software in a device or computer is different. As discussed above, the real heart of a software or computer based patent application is the underlying system architecture and the software routines and sub-routines that actually enable the system to output a useful result. As for the end user that makes use of the software via his or her computer, a description of his or her experience interfacing with the software program is important such that the software-based application is more fully disclosed.
Conclusion
For most software related patent applications the overall architecture of the software system and the routines and subroutines utilized in the software ought to be shown and described in the patent application. End user experience when using a device running the software should also be described.
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