So what is a patent? This video explains what a patent is, what patents can protect, and how you can get one for yourself. If you want to protect your ideas and inventions, this video will give you the basics of how a patent can help you do this. Put simply, a patent is a limited monopoly, granted by the government, that allows the owner to exclude others from making, using, selling, offering to sell or importing the patented invention into the country or region that granted the patent.
The video includes:
– Patents are a negative right
– Limited term that cannot be extended
– Patents are enforceable only in the specific country that granted the patent
-What things can be patented?
– Patents are a form of IP or Intellectual Property
-Trademarks, Copyrights, & Trade Secrets are the other three types of IP
– Patents protect utilitarian inventions whereas copyrights protect artistic works
– Trademarks protect names, logos or other marks that differentiate goods and services
-Patents protect a wide variety of utilitarian inventions
– You can only get a US patent by filing a patent application at the USPTO
– The patent will be granted if the invention is new and non-obvious in view of prior art.
The short answer is no, but yes. This post explains why and illuminates how software, apps and computer-related products can be protected by patents.
Asking and Answering the Right Question
When people ask “is software patentable?,” they are typically an inventor or developer of a product that runs on software, and they want to know if they can protect their invention. For example, it might be a smartphone app, a website, or a device or system that uses software to perform various functions. The real question is therefore whether software-related inventions can be patented. The answer to this question is YES. Unfortunately, the “how” of protecting these inventions is what often leads people to the wrong answer.
Patenting Software Without Patenting Software
An issued patent allows the owner to exclude others from making, using, selling or offering an invention covered by the “claims” of the patent. These claims are analogous to the legal description of real estate. Just as a deed defines the bounds of land that is owned, patent claims define the bounds of intellectual property that is owned. Under the current state of patent law, patents cannot specifically lay claim to software. For example a patent claim that recites “a software product that performs functions X, Y, Z, etc.” would not be allowed.
However, a patent claim to “a computer configured to perform functions X, Y, Z, etc.” could be patentable. A patent claim to “a computer implemented method that includes the steps of X, Y, Z, etc.” could also be patentable. A patent claim to “a computer readable medium that configures a computer to perform functions X, Y, Z, etc.” could also be patentable.
Accordingly, while software itself is not literally patentable, software is effectively patentable by drafting a patent application in the right way. This illustrates one of the many reasons why working with a patent attorney is so important, especially for software-related inventions.
Don’t Get Bogged Down in the “How”
The takeaway here is that software-related inventions can be protected with patents by protecting a computer system that performs certain functions, a computer implemented method, and/or a non-transient memory that configures a computer to do things. However, don’t focus on these technical details when working with your patent attorney to protect a software-related invention. Instead, focus on the functionalities of the app, device or system that you want to protect and let your patent attorney handle the minutiae of patent law that dictates how this is done. Patent law is always in flux, and a good patent attorney will know how to protect software-related inventions as the law changes.
Yes, some ideas can be patentable, but not all ideas. This post explores the basics of what differentiates patentable and non-patentable ideas and gives suggestions on how to determine whether your idea might be patentable.
Venn diagram showing patentable ideas.
What is an idea?
First, let’s define what “idea” means. For our purposes here, we are talking about thoughts or conceptions that are primarily the result of mental activity, but that have not yet become physical products or prototypes. In other words, an idea is the earliest stage of the inventing process, where an invention is still only in the mind or has only been written about or sketched out.
Patents Can Only Protect Certain Types of Ideas
Some ideas will not be patentable simply because they are not the right kind of idea. For example, if you have an idea for an awesome movie, a new book, the perfect product name, or a catchy slogan for your company, these ideas will not be patentable simply because patents do not protect these sorts of things. On the other hand, such ideas might be protectable by copyrights or trademarks.
Patents can protect ideas for utilitarian products like mechanical devices, computer hardware and software, biotechnology, and even methods of making or using a product. However, patent law has carved out some exceptions of utilitarian inventions that cannot be patented, including laws of nature, natural phenomena, and abstract ideas. For example, without more, mathematical equations and common processes being implemented on a computer are likely not patentable because they are considered abstract ideas.
Even if an idea is related to the right subject matter, patent law also requires that the idea be (1) describable in sufficient detail such that an average person in the field would be able to make and use the proposed product or method; and (2) the described product or method must be new and non-obvious compared to known technology.
Steps to determining whether an idea is patentable.
Sufficient Description of Idea Fortunately, the requirement is not that the inventor be able to sufficiently describe the invention, and in many cases, an idea can be patentable even if the inventor would not know how to implement it. For example, if the inventor can describe an idea to a patent attorney such that the patent attorney is able to then add sufficient detail, then the idea might be patentable. The required level of detail required for patentability changes dramatically depending on the type of invention, so talking with a patent attorney as early as possible is the best way to determine if you have enough detail to patent your idea.
Product or Method Must Be New And Non-Obvious The patent system does not afford protection to ideas or inventions that are already publicly known or that would be obvious in view of what is already publicly known. Being “publicly known” refers not only to existing products, but also to any technology disclosure such as a patent publication, a blog post, a video, a live presentation, or the like (collectively known as “prior art”). For more information, an in-depth discussion of prior art and patentability can be found in Patents Demystified.
How Can You Find Out if Your Idea Is Patentable? This post should give you an understanding of the analysis that goes into determining whether an idea or invention is patentable, but the best and most reliable way to know is to seek the counsel of a trusted patent attorney. For some, filing a patent application may be possible much sooner than expected, whereas for others, an idea may need to be substantially more developed. Just as much as inventors should not waste their time and money if an idea is not patentable, they should also not wait longer than necessary to file a patent application. Luckily, such an initial evaluation of an idea or invention can be done extremely fast, and most patent attorneys will even do it free of charge.
Want insider’s guide to the patent process for entrepreneurs, startups and inventors?
Learn how successful companies protect their ideas and inventions. Official patent guide of the American Bar Association and #1 Amazon best seller in patent books. Used at top universities including Harvard and Stanford.
