September 28, 2022

Patenting Software

By Timothy Shields.

As the software industry continues to grow, software developers and the companies they work with may be interested in patent protection for their ideas. As an industry in which developments can have a significant impact on many aspects of our daily lives, creators of new software can see potential high monetary value in their work and seek patent protection to keep others from utilizing their ideas.  

However, it is important to keep a few things in mind for those who want to obtain patents on software. Per current law, it is not possible to obtain a patent on “software per se” – that is, code on its own. This may be because code is seen as a language, even if it is the language used by computers to communicate. However, it is possible to obtain patents on software if it is attached to something tangible. This is going beyond the code to implement.  

In order to obtain a patent, the invention must be new and not something that a person in your field could reasonably think of by combining known elements. The invention must also be in the possession of the person seeking to obtain the patent. So, if you happen to want a patent on software, this is likely to be problematic for those who develop software using cloud-based platforms because the software is located on the host server. As cloud-based software becomes smarter, it may be increasingly difficult to prove that the new software is not new or novel.  

For further information on whether your software is patent eligible, consider speaking with a patent attorney. 

Timothy Shields is a Partner at Kelley Kronenberg, focusing his practice on Technology, Data Privacy, and Social Media Representation. Tim serves technology companies as general counsel for a flat monthly rate based on the company’s needs starting at $1300/month.

Contact Timothy Shields at:
Phone: 833-830-HELP (4357)

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.