Can I patent my software?
Quite possibly. You use patented software every day. For
example, the .GIF graphics format, found on many websites (including the
graphics above and to the left on this page) uses a patented compression
algorithm, and anyone who puts out software that produces .GIF images has to
pay a royalty to Unisys, the patent owner.
Would you like to see some actual software patents?
Click here. Don't expect easy reading.
If you think there is a possibility that you have
patentable technology, you need to make a decision about patenting it now.
You should not put the decision off until you are successful, have more
money, or more time. You must file a US patent application within one year
of when you first commercialize your invention. In fact, if you have started
selling your software you have already lost some foreign patent rights, but
that's probably not as big a problem as you might think.
things you can do short of a full, "big deal" patent application that
will put a stake in the ground if you think you have something patentable.
It's simpler than a full patent application, but it's not trivial, and don't
fall for the people who advertise that they will file something just as good
as a patent for a reduced fee.
It isn't. Mailing a description to yourself in a certified letter does
not work either, contrary to a popular myth.
On the plus side, I believe one or more patents really
increase the value of your company in an M&A transaction. Picture the money
guy who is signing the check for your company. Sure, you claim your software
is unique and the greatest thing since sliced bread, but so does every
programmer. A patent tells him the US Government found some unique merit in
your software, and that no competitor can spring up doing the same thing.
Here is some patent background information to get you
Strictly speaking, you don't "patent your software," you
would patent one or more "inventions" (that might be embodied in your
software). This is as opposed to, say, copyright, where what you copyright
is your software (and manuals, screens, etc.) itself.
In order to be patentable, your "invention" must be
useful, non-obvious and novel. You must be the true inventor.
Here, by the way, is the current state of Amazon's 1-click patent dispute
with Barnes and Noble.
A misunderstanding of the difference between novel and
non-obvious is what fuels a lot of erroneous party chatter about the sad
state of patent affairs in America.
You must be the true inventor. It can't have been invented
by your deceased grandfather (but the estate could file), by an employee
(she has to file, and could assign it to the company
— you do have that clause in your
employment contracts, don't you?), or you and an ex-girlfriend that you
don't speak to anymore (she has to file the application too).
Hope this gets you started in your thinking. Of course,
this article does not constitute legal advice. There are lots of variables
and exceptions, and if you have serious patent questions, the right place to
go is a patent attorney. Patent is a very specialized field. Patent
attorneys must be members of a special patent bar, as well as their state
bars. It's a very different legal field from trademarks and copyrights, and
your "regular" attorney who helps with contracts and landlord issues will be
almost certainly of little or no help. Here is an authoritative source of
United States Patent and Trademark Office Home Page. It includes a
search form to help you find a patent attorney.
I've recently filed a patent application for
software and a
business method based on the software. If you are interested in talking,
drop me a note.