Maybe you’ve heard that software isn’t eligible for patenting.
Or maybe you’ve read that it’s nearly impossible to convince the USPTO to issue a patent for software.
Both assertions are simply nonsense!
Credible surveys in each of 2019 – 2024 show that approximately 62% of all the issued utility patents in the U.S. the previous year were software related. Of those, in 2024, about 8% were related to artificial intelligence. Interestingly, in 2024, roughly 50% of European patents, and 41% of Chinese patents, were software related.
Unquestionably, for software and e-commerce companies (established and startup alike), patents are often one of their most vital assets and a key to protecting their company’s value.
Not only is software eligible for patenting in the U.S., but it also plays a crucial role in most U.S. patents. And just like any other class of innovation, innovative software can be patented so long as it’s novel, non-obvious, and described and claimed very, very carefully.
Drilling down on patent eligibility, the law on this subject has been in a state of flux for quite some time, making the patenting process for software a bit less clear, reliable, and easy than for many other technologies. Nevertheless, it is possible to not only obtain a software patent, but to relatively quickly obtain a software patent that is valuable, of high quality, and is even respected (by competitors and investors alike).
A good place to start when trying to determine whether your company’s software-related innovative concept might be patent eligible is to first identify any technical problem that the concept solves (possibly expressed as a “Problem/Solution Statement”), and whether the concept does so in a manner that is more than simply automating a well-known solution or a human thought process.
Potentially patent-eligible software concepts can relate to improvements to computing/information technology itself, such as new and non-obvious:
- Processor architectures
- Memory/storage structures
- Caching techniques
- File management and data structures
- Data transformations, e.g., deduplication, verification, translation, synthesis, etc.
- Data processing techniques
- Data mining and taxonomy discovery
- Pattern recognition and machine learning algorithms (supervised, semi-supervised, Unsupervised, parametric, non-parametric, regression, Bayesian, decision trees, clustering, neural networks, etc., as applied to, e.g., image, video, speech, audio, etc.)
- Communication protocols and algorithms (e.g., flow control, error/fault detection/correction, compression, encryption, modulation, multiplexing, etc.)
- Application programming interfaces and frameworks
- User interfaces
- Operating systems
- Collaborative and/or distributive systems
- Modeling, simulation, & emulation algorithms
- Mathematical/statistical algorithms
- Security techniques
- Control systems
An innovative software concept also can be patentable if it improves a technology other than information technology, such as by interacting with hardware (e.g., transducers, sensors, accumulators/counters/dividers/registers, converters, transmitters, receivers, conductors, controllers, actuators, etc.) other than the generic processors, RAM, ROM, display, network interface, etc. of a typical computing device.
From a patent eligibility standpoint, what tends to cause problems for software patenting is when the claims cover all solutions to a given problem or when the claims cover the benefits/outcomes from implementing the software. Instead, claims should be directed to a specific solution to a technical problem and not seek to claim the generic benefits that likely would flow from all solutions to that problem.
Thus, when it comes to fortifying your patent application against eligibility rejections from the USPTO, as well as eligibility challenges after your patent issues, your patent attorney should work with your company to expressly identify and weave together within the application’s specification and claims:
- The specific technology/technical field of the innovative concept (and any relevant subcategories);
- The technological improvement made by the innovative concept; and
- How the technological improvement is achieved by the innovative concept.
The application also should identify and explain both the structure and function of the claimed innovative concept, along with any corresponding (structural and/or functional) relationships between it, its hardware, and/or its environment.
In addition to potentially averting eligibility rejections, this approach also might lower the risk of having to make undesirable narrowing amendments during the application’s prosecution.
Although risky and generally discouraged, for innovative concepts involving software (only), on occasion it might be worthwhile for the application to contrast the innovative concept to what’s known in the art, as this has helped some patent owners overcome patent eligibility challenges. On the other hand, such discussions can limit the scope of the claims and/or provide a roadmap for a competitor to implement the innovative concept while avoiding infringement (i.e., “design-around” the claims).
In summary, even though the law is still evolving and best practices for application drafting are still being developed and refined in response, yes, software is still generally eligible for patenting in the U.S. and, in fact, the majority of patents issued by the USPTO are software-related.