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When Should Software Be Patented?

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Despite the controversy over whether software should be patentable, 62% of all patents filed are software-related. The biggest issue with the software patent debate is a lack of understanding. 

Before we cover patent eligibility requirements for software, it’s important that we address the elephant in the room. Many tech founders see software patents as a roadblock to innovation. While we sympathize with this viewpoint, we also understand the competitive nature of the industry and encourage our clients to leverage software patents as a legal tool to protect their innovations when possible.

This leads us to the question, when should software patents be pursued by a tech startup? 

When Should Software Be Patented?

Before obtaining a patent, there are a few things worth considering. While developing new software might be exciting, don’t forget that you should be thinking about how to protect your innovation. If you produce a piece of software and it has the potential to be marketable or particularly valuable to your company, you should seriously consider developing an IP strategy to protect your software IP assets.

At the outset of developing an IP strategy, consider the following questions:

  • What are your short-term and long-term goals for your IP assets? Is your software the type that will be soon rendered obsolete, or do you have reason to believe that your software will have lasting power in the market?
  • How valuable is the software asset to your company? Evaluating the worth of the software can help you determine whether it warrants IP protection
  • What IP protections is the software eligible for? A skilled patent attorney can help you identify patent-eligible processes that your software performs.

Various aspects of software-implemented inventions may be eligible for patent protection. For instance, the underlying process that the software performs could be protected by a utility patent, while tangential features of software, such as graphical user interfaces, displays or icons, can be protected with design patents.

When other tools for protecting your software fall short, a patent can provide the extra protection benefits required to make the continued investment worthwhile. 

When Shouldn’t Software Be Patented?

Not all software is patentable. You shouldn’t seek patent protection for software that doesn’t have a novel process or function. This would be software that’s openly accepted and known about. 

The only time you could consider seeking a patent is when you develop an innovative software or improvement to existing technology. The focus should be on what novel processes your software performs, and whether your software moves technology forward. 

Can Software Code Be Patented?

The actual code of your software is not patentable. While a patent does not protect the actual code created for your software, copyright protection can.

Unlike patents, copyright protection attaches as soon as you put the code into a tangible medium. However, it can be difficult to prove the creation date, so filing with the US Copyright Office can help secure your protection and have proof of the creation date. 

Considering Patenting Your Software?

Developing new software can be a highly profitable venture. However, you’ll want to protect your innovations while you pursue a profit. Understanding how and when to pursue patent protection will help you effectively protect your software and its code. 

It’s smart to speak with a patent attorney early on. This ensures you don’t miss an opportunity and expose you and your startup’s intellectual property to unnecessary risk. 

Request a free consultation today and speak with one of our skilled attorneys about protecting your software and valuable intellectual property. 

The post When Should Software Be Patented? appeared first on The Rapacke Law Group.

Source: https://arapackelaw.com/patents/softwaremobile-apps/when-should-software-be-patented/

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