Computer code creates the shape of a courtroom gavel to represent patents for software-related inventions
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By J.D. Houvener
Patent Attorney and Founder

The application process for software-related patents doesn’t differ enormously from other patent applications. However, the criteria your invention must meet to be eligible for a patent are much different. Over the years, court decisions have only increased the ambiguity surrounding patents for operating systems, applications, and other software-related inventions. Accordingly, navigating the technicalities can be challenging. 

At Bold Patents, we believe innovation should be accessible, and we hope this article will help guide you on your path to successfully patenting your software-related invention.

Do I Need a Patent for My Software-Related Invention?

Before you begin your software-related patent application, you should ask yourself a few questions:

  • What are your long-term goals? Do you have a plan for enforcing your IP? Or are you considering to instead monetize by licensing/selling your IP portfolio? Things move much more quickly in the software/high-tech field than they do in other industries so having a longer term plan becomes more impoortant for software related companies. Ideal candidates for software-related patents have projected sustainable market value. 
  • Does your product improve on existing technology or include a function that has not yet existed in the public domain? It can be challenging to prove the novelty of a software product. Can elements of your product advance the current state of technology?
  • What type of patent is suitable for your invention? You may want to base your patent application on your IP’s features. For example, a software patent that is centered around a process you’ve invented would likely fall under the scope of a utility patent. Conversely, visual elements like icons or displays would be better protected with a design patent

When Can I File For A Software-Related Patent?

After the value of IP has been established, people often want to obtain patent protection right away. Generally, you can file for a software-related patent anytime during your invention’s development—but how early is too early to file?

At a minimum, you should have a product that is functional on a basic level before you file. Any critical features or components should be included, including an outline of further development plans.

What Criteria Do Patents for Software-Related Inventions Need to Meet?

In 2014, the Supreme Court established two requirements for determining the eligibility of patents for software-related inventions in Alice v. CLS Bank, 134 S. Ct. 2347

  1. A software-related patent must be more than an abstract idea. For software-based inventions to be patentable, they must improve computer functionality in some unique way. It sounds simple, but there’s more to it than first impressions indicate. For example, if someone could adequately solve the same problem through the same means without the help of your invention, it isn’t eligible.
  2. The subject invention must be transformable. In short, this second requirement covers inventions that don’t quite fall under the scope of the first. Suppose your invention is not a concrete tool (like a methodology) but its results could not be duplicated in its absence. In this case, the inventor needs only to prove its technical merit, or its ability to be transformed into something patentable. Novelty is one of the primary requirements for patents of any kind, so this requirement is far less inhibiting than it seems. 


You’ve been using an open-source testing framework that automates regression testing. You discovered that it can be used in conjunction with AI to automate other aspects of software testing, like functionality tests. It’s unlikely that your methodology would be patentable because someone with similar engineering expertise could draw the same conclusion without the use of your particular method.


In the case of Alice v. CLS Bank, Alice’s invention only required a generic computer with generic computer functions to implement. Several justices of the court concurred that any claim which merely describes a method of doing business should not be patentable.

Why are the criteria so specific?

Patents for software-related inventions are complicated due to the nature of their industry. As with any USPTO claim, newness is a patent requirement. Unfortunately, the novelty of abstract ideas is difficult to measure in the software industry. One could make the argument that anyone with equal technical expertise could stumble upon the same problem-solving method on their own. For this reason, software-related inventions must prove their uniqueness by demonstrating their ability to introduce something brand new to a common process. 

Pro Tip

The software-related components of an invention must add something to the process that wasn’t there before.

Software-Related Patent Criteria FAQ

Q: Can I obtain patent protection for graphical user interfaces?

A: Yes, it is possible to patent your UI. Tangible features of your product are most likely to receive patent protection under a design patent.

Q: Do I need to write software code in my patent?

A: No, you do not need to write out the code for your software patent. Your patent only needs to describe how the code will accomplish its desired operations. The most important things to include in your patent description are the features, functionality, and architecture.

Q: What should my patent description include?

A: Your description should effectively explain the steps or processes your software follows in order to achieve the outcome/benefit/functionality it was created to solve. It must adequately convey the utility or design patent requirements while also providing context in the form of flowcharts and diagrams. Although code is not required, it can be helpful to imagine that your description will serve as an instruction manual for someone who is trying to prototype your invention.

Q: What is a Section 101 denial?

A: Section 101 of the patent act has four statutory categories. In accordance with Section 101, patents will be granted if the subject is a “new and useful process, machine, manufacture, or composition of matter.” If a patent has been denied citing Section 101 as the basis, the invention may not be patentable because it does not fit any of the above categories.

Note: Non-statutory exceptions exist regarding the patentability of abstract ideas or inventions. For instance, certain inventions may be basic tools of technological work or even natural phenomena by the USPTO. The complexities of Section 101 can be extremely difficult to navigate without the help of a seasoned IP professional. Consulting with an expert is always recommended. 

Do software-related patents take longer to execute?

Patents for software-related inventions must go through the same process as any other. Once your initial submissions have been made, you must wait for the USPTO to review your claim. They may ask for additional information or clarification, especially if the scope of your claims is too broad. Eighteen months after your application has been submitted, the USPTO will publish a detailed description of your invention. 

This time frame is prone to delay because the patent may not be granted immediately after publication. We’ve published a walkthrough of the patent application process before, so we’ll skip the gritty details and provide you with a few helpful tips about moving your invention through the patenting process instead. 

How can I perform a prior art search?

The PatentScope database is an excellent resource for performing prior art searches. It is operated by the World Intellectual Property Organization, meaning that it has an international scope of coverage. Through PatentScope, you can access abstract versions of patent applications filed through the Patent Cooperation Treaty. 

We also recommend checking the USPTO’s online search tool for publications that might be like yours. The search may be arduous, but it’s one of the most important phases of the patenting process. A thorough patent search will ensure your invention doesn’t infringe on another, saving you from possible denial of your patent application. 

Should I seek professional legal advice?

As demonstrated above, patents for software-related inventions can be highly complex.  Seeking guidance from an intellectual property attorney will reduce the chances of your application being denied by the USPTO. Those who are just beginning their patent application journey should consider obtaining a free Discovery Call

Bold Patents proudly partners with inventors to protect their intellectual property rights. Contact us today to improve your chances of patent application success. 

About the Author
J.D. Houvener is a Registered USPTO Patent Attorney who has a strong interest in helping entrepreneurs and businesses thrive. J.D. leverages his technical background in engineering and experience in the aerospace industry to provide businesses with a unique perspective on their patent needs. He works with clients who are serious about investing in their intellectual assets and provides counsel on how to capitalize their patents in the market. If you have any questions regarding this article or patents in general, consider contacting J.D. at