Protecting Ideas Expressed as Software

The founders of startups that provide software products or services often believe that their company’s software is not patentable.  An innovative idea embodied in software, however, is generally patentable in the U.S.  In fact, if a device or system such as a biomedical, electronic, or robotic device includes a software component for control, calibration, measurements, or analysis, for example, that software component may be patentable.

Those who do seek patent protection for software may not be aware of the legal requirements that are somewhat unique to protecting innovative ideas expressed as software.  For example, in HTC Corp v. IPCOM GmbH, the Court of Appeals for the Federal Circuit stated in dicta that in order for a software patent to be valid, the patent must sufficiently disclose the algorithms that implement the claimed functions.  In doing so, it is not necessary to provide the actual code, but the patent must describe the key steps in the algorithms.

As the software development community recognizes, many software solutions are often novel combinations of known techniques.  Typically developers modify one of those known techniques to solve the problem at hand.  This modification may significantly improve performance or may even be essential to the desired final result.  Often, however, the developers only consider the patentability of their combination of known techniques.  It is critical, however, for the company to consider any modification to a known technique because such a modification may provide commercial advantage over a competitor’s products.  In light of the legal requirement to disclose algorithms for functions claimed in the patent, a patent application should clearly identify and describe the algorithms to implement those modifications so that the patent obtained is commercially valuable and protects the company’s products.

This post on Patents was authored by Suhrid Wadekar.


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