How to determine whether software is patentable – Part 6

This is the sixth and final segment in our series of articles on how to determine whether your software is patentable. If you are an inventor, an executive at a tech company, or a patent lawyer outside the U.S., this will help you to at least make a first pass determination of whether your software is worth considering for patent protection.  In each article in this series, we cover one criterion that you can use to evaluable whether your software is likely to be patentable.

In this installment, we will focus on the criterion of whether your software requires or benefits from the use of multiple computers or multiple devices for it to work. If your software does either require or work better when it is run in a way that is distributed across multiple devices, that is helpful because it lends weight to the patentability of the software. This is another criterion that is not required; we regularly obtain patents for our clients on software that just runs on one device.

If your software benefits from executing across multiple devices, this can make it easier for you to obtain a patent on that software.  For example, any kind of peer to peer algorithm for leveraging multiple computers to compress data is an example of the kind of software I am talking about. Any software that distributes a problem across multiple computers to solve parts of the problem and then combines the partial solutions from those multiple computers together is an example of distributed software that satisfies the criterion we are focusing on today.

Even though this criterion is not exactly the same as the criterion that we discussed in one of the previous installments, namely whether your software is necessarily rooted in computer technology, you can see how these two criteria are related to each other, because if your software is distributed across multiple computers, then you can probably make a strong argument that this software is necessarily rooted in computer technology. For example, a human solving the same problem would not distribute the problem across multiple devices, and this will help in your argument that software that solves the problem using multiple devices is not merely mimicking the way that a human would solve the same problem.

A common pitfall is to write a patent application for software that is distributed across multiple computers in a way that results in a patent that is not valuable. In particular, if you describe and claim your software as relying on peer-to-peer technology, but in practice your competitors implement the same basic algorithm using client-server technology, then your patent might not be infringed by your competitors even if they have copied the basic approach of your idea.  This is one reason why it is very important for you to retain a patent attorney who is not only fluent in how computer technology works, but who is also well-versed in how to write a software patent application that is both technically accurate and legally broad enough so that competitors cannot easily work around the patent and avoid infringing it.

Thanks very much for joining us for this six-part series on How to Determine Whether Your Software is patentable.  Now that we have finished this series, I suggest that you use all six parts of this series as a checklist to evaluate any new software that you or your clients develop in order to help you determine whether that software is worth considering for patenting.  Although there is no strict formula for applying all of these criteria, in general, the more criteria your software satisfies, the more likely it is to be patentable. As always, to obtain an actual legal opinion about whether your software is likely to be patentable, you should retain a licensed and competent patent attorney in your jurisdiction.

If you have any questions contact us directly at blueshiftip.com and if you have any software software inventions to pursue patent protection for in the U.S. please feel free to contact us.

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