Software is created in the mind, so it is a form of intellectual property. That software may be a valuable investment and the core of your business.
How do you protect it?
Copyrights and patents are different forms of intellectual property that may provide overlapping protections in the computer software arena.
Copyright protects expressions of ideas, not the ideas themselves. Patents, in contrast, may protect ideas, procedures and methods as long as the patent claims are not directed merely to “abstract ideas” – something “significantly more” is needed under current U.S. patent law. Our patent attorneys assist our software clients in determining which form of intellectual property protection, or both, may be suitable given client-specific facts.
The U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank Int’l case and its progeny have injected uncertainty into the “software” or “computer-related” aspects of patent law. The uncertainty is due to the inconsistent or irregular interpretation and application of the Alice progeny to software related patent applications by not only U.S. District Courts but by the United States Patent and Trademark Office itself. Generally speaking, inventions embodied in a U.S. “software” or “computer-related” patent will have improved computer performance or fixed a problem caused by computers. On the other hand, “software” or “computer-related” patents usually are not issued in the United States on inventions that merely use a computer to automate a manual task or only improve the use of a computer. In other words, an improvement to the computer may be patentable, but improving how someone uses the computer may not be.
Various professional and inventor interest groups recognize that the Alice cases are negatively impacting the U.S. economy and many legislative proposals are being considered to remedy the inconsistencies in this area of patent law.
In the meantime, a “software” or “computer-related” patent application may still be an asset if it at least describes the architecture of the system in which the software will exist, includes flow charts that show how various routines and subroutines work in concert to make the computer system function, focuses on a technical improvement over the prior art, and possibly includes lines of code in claims that embody the technical improvement. Thus, our patent attorneys attempt to ensure that a “software” or “computer-related” patent specification explains the problem, the improvement or solution to the problem, and reflect that improvement or solution in the claims of the patent application.
Different countries have different approaches to software innovations and whether these are patentable. Our attorneys try to draft a software or computer-related patent application with country-specific requirements in mind for those clients seeking patent protection around the world.