Software Based Inventions Must Recite Eligible Subject Matter
All patent applications must recite patent claims on what the USPTO considers to be “eligible subject matter”. To be considered “eligible subject matter”, the patent application for a software based invention must recite claims that amount to improvements to the functioning of a computer.
A pure software algorithm that is disembodied from any technology or machine is probably not patentable subject matter because it is considered an “abstract idea”. As a result it is not within a category of “eligible subject matter” according to US patent laws and various court rulings.
The USPTO will likely reject a patent application for a pure software algorithm as ineligible subject matter. However, patent claims for software processes can probably be included in a patent application for an invention that is more than a pure software algorithm, where the software processes enable the functioning of that invention.
How to Patent an App including a Desktop, Laptop or Mobile Application
To patent an invention that operates via a software application, a nonprovisional patent application that includes the following items must be carefully drafted:
- A set of patent claims that recite patent eligible subject matter that is not considered an “abstract idea”.
- Software flowcharts showing all the steps of the software processes, with each flowchart step numbered and described in the textual part of the patent application. The software source code is not necessarily required.
- Detailed descriptions and explanations of the operation of your software algorithm.
- Detailed descriptions and explanations of how to make and use the hardware components of your invention that utilizes your software app.
The software patent application is then filed with the USPTO where it is examined to determine if the invention meets the various patentability requirements.
How to Patent an App – Other Requirements
In order to patent an invention utilizing computer software such as a mobile app or desktop app, besides the requirement for “eligible subject matter”, the invention must also satisfy the requirements of utility, novelty, and non-obviousness that all patentable inventions must satisfy.
A software patent application, like any patent application, must also provide a full (enabling) disclosure and description of the invention.
A patent application for an invention utilizing computer software should normally include flowcharts of the software process, and should include at least one block diagram of the computer hardware and (if applicable) computer network systems.
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