Maiorana Patent Law, PA

Software Patents

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What is a software patent?

Chris: A software patent is a patent granted on a software invention. I know that sounds broad, but in general if there's software code that runs in a microprocessor, and the invention is new, useful, and non-obvious, then we can likely get a software patent issued. Software Patent Law is complicated.

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I've heard software patents are banned under some new Supreme Court cases? Did I hear correctly?

Chris: There’s a lot of talk about the new Supreme Court cases. The case people have been talking about the last couple of years is Alice. That is a recent case and the Supreme Court came out with a two part test for software patent and business method patent eligibility. They came out and clearly and stated they are not banning software patents; just making a two part test. But it sent some shock waves through the Patent Office. There are a lot of follow-up cases, and discussion and guidelines on the Alice Supreme Court case. In the end I think it's a good case that is going to help get rid of super broad software patents and I don't think it's going to hurt legitimate software patents that should be allowed. That's where a software patent lawyer can help.

The other thing I heard is software patents are not allowed in Europe.

Chris: In general, they are a lot tougher to get in Europe. Some associates will say they can't get you any coverage at all. The European Patent Office is a lot tougher. But if you meet their standards, you can get some coverage in Europe. We work with a lot of other Patent Attorneys throughout the world, and we have associates in Europe. They refer cases to us, and tell their clients, "It's going to be tough in Europe, but you could probably get a claim in the U.S. Call Chris Maiorana at MaioranaPC.com - that's our preferred associate Software Patent law firm. He's done good work for us before." We’ve been getting referrals that way, which is good.

Smart phone apps. Can you patent those?

Chris: In the right circumstances you could. But you will still have novelty requirements to meet.

What are novelty requirements?

Chris: Any claim that's going to grant as a patent has to be new, useful, and non-obvious. The new part of it is that no one else has done this before. Useful means they don't want people patenting illegal things, not useful to society, not used so much. Being non-obvious is an important criteria that usually comes up under 35 U.S.C. 103. It relates to obviousness. That's where the Patent Office (USPTO) combines two references together and says that if someone skilled had those two references in hand - it would be obvious to combine them. That's a big part of what we argue against with the Patent Office when you get into prosecution. Even though we deal with software patents, they still have the same criteria to be new, useful, and non-obvious.

Besides certain phone apps, what types of software are patentable?

Chris: The more society gets rolling, the more there will be software that's out there. You're going to have firmware in products. That's going to be embedded on a chip that's made for one time software code on the chip. There's a lot of talk with flying cameras (or drones). There are all these little tricks drone manufacturers do. For instance, the drone has a mode where it follows you around, so you don't have to pilot it. Maybe 10 years ago that was new and could have been a patent claim. There's also a lot of control software and a lot of talk about the smart home. The Internet of Things (IoT) is another hot idea that somewhat relates to the smart home. Each of those Internet of Things devices could be subject of a patent claim. There are plenty of software patents that relate to a lot of these concepts. Software patent lawyers are good at figuring this out.

Book an appointment to discuss your Patent issues with one of our Software Patent Attorneys.