Discover how trademark, patent, and software law can help small business, entrepreneurs, and inventors. Check my blog for questions and answers.

Do you have a Software Invention?

A software invention discovers a new way of use for software or a software system. Software patents can protect how a computer system accomplishes results or how a software process accomplishes a method. In essence, this protects the innovative concepts ("the ideas") behind the source code. Certain actions cause a loss of patent protection, unless you act timely.

On this page...
  1. Do you have a software invention?
  2. 4 Actions to Avoid before applying
  3. What your competitor cannot do
  4. Software Patent Rights

Software patents prevent others from using the new aspects of the software invention. {#software-patent}

Do you have a software invention? Can you apply for a software patent?

Software Patenting is available for software inventions that are new and non-obvious. For example, if the software does something never done before, and, a programmer of ordinary skill would be unlikely to create the invention, a patent can be granted for the claims of a software invention. If you believe you have software that does something new, you may apply for a software patent. Patents protect how a software invention is new and how it is useful.

Losing your Software Patent Rights: Four Actions to Avoid Before Applying for a Software Patent {#before-software-patent}

Software patents are only available by applying for a patent at the U.S. Patent Office before the following actions are taken:

  • before the software becomes available to or used in the public;
  • before the software is offered for sale; and
  • before the the software is published.

In addition, failing to keep your software secret and confidential can lead to untrustworthy third-parties taking these actions. By avoiding these actions and keeping the software secret before filing a patent application, software patent rights can be maintained.

In the US, patent laws allow a 1 year grace period for filing. However, due the nature of related software legal rights, the best time to apply for a software patent is while the software is still secret. Establishing the exact date of any of above actions can be difficult -- which means the exact expiration of the 1 year grace period may be unknowable. Since this is a frequent problem in patent litigation, we usually recommend the earliest practical patent filing. Patent rights are valuable enough, and, informal patent applications are inexpensive enough, many software developers are served better by a patent filing than the grace period.

What your Competition cannot do with your Software Invention {#software-patent-benefit}

Software patent law protects the software owner by preventing competitors from making, using or selling the software invention described by the patent claims. When someone makes, uses or sells the software described by the patent claims, they infringe the software patent. Software infringers may be required to pay damages to the patent owner, and, if willful, the court can multiple the damages by three. Patent owners can obtain injunctions to prevent competitors from infringing the software invention. A court ordered injunction prevents the patent infringer from continuing to infringe the patent.

Also, software patent owners may demand royalties in exchange for a permission (a license) to the exclusive or non-exclusive right to use the software invention.

Once you have filed a software patent application, you will immediately enjoy new legal patent rights. For example, (your pending patent application is a property right that may be sold to others or licensed to collect royalties. You can sell your software patent application prior to approval of the final patent grant by the US Patent Office. You can begin publicly distribution your software without concern that the patent application would be untimely and denied by law. Finally, you can legally mark your software patent pending and* place your competitors on notice of your pending software patent claims.

Can I amend a trademark after rejection?