Here is a lighted-edited transcript of the blog:
Can I get a patent on my software?
I’m Anthony Verna, managing partner of Verna Law, P.C, where we focus on intellectual property and advertising law.
The short answer is “Maybe.” “It depends.” Lawyer answers, of course.
Let’s talk a little bit about what a patent for a software invention would require.
Number one: the algorithm, because that’s really what we’re patenting, has to be new. Our algorithm – or your algorithm – has to be novel. Your algorithm also has to be non-obvious.
This is the typical standard for any utility patent.
However, we had a case about, let’s call it six years ago, in which the Supreme Court said that an algorithmic patent must include an inventive step. What does that mean, six years later? We’re all still a little confused about that, but what I would say is: What does your software, what does your algorithm do that is truly different from an algorithmic standpoint?
Is it more efficient? And how is that efficiency defined? Some algorithms are defined by processing time, especially with software. Some algorithms are defined by user interface and how the user changes the interface. That’s going to be considered an inventive step.
All of that is something to consider while we ask the question, “Can I get a patent on my software invention?”
Just remember, it’s a very high bar. And as a matter of fact, the, Patent and Trademark Office, after the Supreme Court’s decision a few years ago, took all software and algorithmic patent applications and put them to the side before they were considered, before an inventive step could truly be defined.
The USPTO has their definition. We don’t really know what that particular definition is, but we really see that those software patents that do something truly different from an efficiency standpoint are the ones that are granted. That’s what’s really hitting that bar.
Again, I’m Anthony Verna, managing partner Verna Law. See us at vernalaw.com for all IP questions. Thank you.