Computer Software

How to Patent Software in 2021: Requirements Set by Alice

If you are familiar with the current state of software patents in the United States, you probably know about Alice. Alice is big trouble for software patents and the precedents set in this decision are even being used for other technology patent cases. If you aren’t familiar, you can read the Supreme Court’s opinion for Alice Corp v. CLS Bank or this Alice summary for the major points of the case.

The Supreme Court has, so far, refused to take up any of the follow-on cases from the Federal Circuit, and while Congress has promised legislation to address the issue, so far nothing has been passed. This means practitioners and the Patent Office have no clear approach or solution to handling this type of patent request. The Federal Circuit and Patent Office aren’t on the same page when it comes to handling Alice, and there’s even some internal disagreement on the issue. This means there are no rules that reliably lead to a solution.

Is Your Patent Likely to Survive in a Post-Alice Landscape?

Think of the situation like a frozen-over lake: You want to cross over, but the ice might break at any point. There’s no way to determine where the ice is thick enough, and frankly, everyone walks and weighs differently. Just because one person crossed somewhere does not mean you can, too

Let’s stay the heck away from the thin ice and give you the best chance of making it across. Because of the complexity of the issue, we cannot give a legal opinion or set of legal statements in an article like this. However, patents that meet one or more of the following standards are more likely to be denied:

  1. When someone reads your patent, they conclude that you just applied some principle of science or technology in a predictable way and you are trying to own that predictable application
  2. It seems like you are just implementing, with computers, some existing process that is done without computers
  3. The uniqueness of your technology revolves around human behavior or relationships (e.g. special contracts, transactions)
  4. The benefits of your software technology seem to be focused on making things better for users (so far making things better for people with physical gadgets seems safe)

You can find yourself on thicker ice if:

  1. The benefits to your software technology seem to be focused on making things better for the computing system components (e.g., same results with fewer CPU/memory/etc. resources, faster operation, new functionalities)
  2. The uniqueness of your technology revolves around specific structure or function of the parts required to make it work
  3. You have developed a new process or improved on an existing process in a way that seems counter-intuitive
  4. When someone reads your patent, they conclude that you had to be clever to figure out how to make it work

When your patent application meets all 4 of the above standards, it is much more likely to be granted. This means it’s not only important what your idea is—it matters how you present it.

Tailored Advice for Your Software Patent Application

Hitting the 4 suggested points isn’t the only way to get a software patent; however, if you plan to apply for one, you should definitely be talking with an experienced patent attorney. They will be able to give you specific advice for your specific technology.

Good legal counsel can be the difference between success and disaster when the ice is thin, so think ahead and be careful about the kinds of applications you are filing and the ways that you are framing your innovations. These guidelines are not guarantees and should not be taken as such. Entrepreneurial-minded people are my favorite people in the whole world, but sometimes with your excitement and drive, you can get ahead of yourself—and you likely know it.

Don’t end up in freezing water because your patent wasn’t tailored to the standards of the moment. A registered patent lawyer can help you take the right steps.

Pearson Butler handles patent law and other IP concerns. Call us at (800) 265-2314 from anywhere in Utah if you have questions.