Can I patent my software?
Can I patent software and business methods? This is the first question most clients have, and one of the most common questions I get. But the real question is should you patent your software and business methods?
From a legal perspective, we need to look at two requirements in particular: novelty and obviousness. Regarding novelty, you can usually find a way to write up the invention so that it’s novel – you can add a requirement that it be coded a certain way, or that you take a particular step that is unique to you and you alone (“and then a widget powered by purple hamsters running clockwise does the inventive thing”). But then your competitors will have an easy way to avoid infringing your patent (Use blue hamsters! Or have them run counterclockwise! Or leave them out altogether!). So you and your lawyer need to be able to resolve the tension between ‘broad enough that you’ll be able to cover work-arounds’ and ‘narrow enough for the Patent Office to find the invention patentable.’
Next, you need to address obviousness, which is a big issue for software and business method applications. Why wouldn’t one of your peers be able to easily figure out how to make your invention? Why hasn’t anyone does this already? For a more detailed discussion on obviousness, see this post.
If you and your lawyer can identify solid arguments to overcome novelty and obviousness issues, then you should consider filing the application. If not, you may want to reconsider using patents to protect that feature.
Then there are a number of business questions to consider: Is it worth your time and money to go through the process? What will your business gain from developing patent properties? How will you benefit from this investment in the years before the patent application is approved and a patent issues? For a detailed discussion of some of the biggest business reasons to file a patent, see this post.
If you and your attorney have identified the aspects of your technology that satisfy the novelty and obviousness requirements and you’ve made the business decision that your company will benefit from an application, then, yes, you can file a patent application.
P.S. No hamsters, purple or otherwise, were harmed in the writing of this post!
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